Typically, attorneys and clients faced with an adverse non-Final Order of a trial Court are presented with two quite unsatisfactory choices in deciding how to proceed.  The first option is to wait until the disposition of a case to appeal the Order, and the second is the rarely successful course of Moving the trial Court for permission to appeal an Interlocutory Order.  Many practitioners are unaware that there is an entire third class of Orders in Pennsylvania which are neither Interlocutory nor Final, and which may be immediately appealed to a higher Court.  This narrow class of Orders – the Collateral Order – present practitioners with an opportunity to bypass the procedure for certifying an Interlocutory Order for Appeal and proceed directly to an Appellate Court.

The Collateral Order Doctrine existed in Pennsylvania common law well before the adoption of Pa.R.A.P. No. 313, codifying the doctrine.  An Interlocutory Order will be deemed a Collateral Order, and thus immediately appealable as of right, if the Order itself is “separable and collateral to the main cause of action,” where “the right involved is too important to be denied review” and where “if review is postponed  .  .  .  the claim will be irreparably lost.”  All three prongs of the Rule’s test must be met in order to secure a proper Collateral Appeal and overcome Quashal.  The Courts of the Commonwealth have traditionally guarded the Collateral Order Doctrine jealously, narrowly interpreting each prong of the Collateral Order test in order to prevent Collateral Orders from swallowing the general Rule that non-Final Orders are not appealable.

Most recently, Appellate Rule 313’s “separable and collateral” language has been interpreted by the Pennsylvania Supreme Court to mean that review of the Order itself does not require analysis of the merits of the underlying claim.  Ben v. Schwartz, 729 A.2d 547 (Pa. 1999).  In Ben, the Pennsylvania Supreme Court considered an appeal where the Appellant asserted statutory privilege in a State Bureau’s investigative files.  While disclosure of allegedly privileged information may have a significant impact of the likelihood of one party prevailing in an action, a Court’s ruling concerning a privilege is unlikely to go to the merits of a case, and thus is a matter that is “separable and collateral” deserving immediate Appellate Review.

The second prong of the Collateral Appeal test, concerning the importance of the right which a prospective Appellant desires to safeguard cannot be underestimated.  It is this prong which most permits the Appellate Courts to narrow the Collateral Appeal doctrine on policy grounds and for the purpose of enforcing the line between Interlocutory Orders and Collateral Orders.  The most successful claims to review under the doctrine will touch upon rights of Constitutional import, such as First Amendment Free Speech clause claims, statutory rights and privileges, such as rights to nondisclosure of information protected under HIPAA and FERPA, and rights founded in the common law with “deep historical roots” and which reflect broad public policy, such as the attorney-client privilege. 

The third prong of the test will also tend to narrow the class of Orders subject to Collateral Appellate Review.  Non-Final Orders which meet the first two prongs of the Collateral Order test, but which do not present the possibility of an irreparable and irreversible error on the part of the lower Court will be denied review as Collateral Appeals.  Once again, the most fertile ground for Collateral Appeals will be found in the realm of statutory and common law privileges, and Orders affecting Constitutional Rights where there is a strong policy against prior restraint, as in Free Speech cases.  Collateral Orders can most effectively be analogized as the proverbial “bell that cannot be un-rung,” and practitioners will do well to emphasize and support their arguments in response to Motions to Quash and in the Appellate Brief itself that the harm of the lower Court’s error is of such a class that allowing the Order to stand until the resolution of the case-in-chief will render the later appeal both fruitless and meaningless.

As many practitioners reading this article may have concluded, the prospect of a Collateral Appeal will often arise during the Discovery process, where the Court enters an adverse Discovery Order and the client wishes to preserve rights in that context.  One would expect that Collateral Appeals will become more common as Legislatures and Courts seek to expand rights founded in privacy and privileges against disclosure, and as computer use obscures the line between personal and business affairs.  To meet these new challenges in practice, attorneys must be aware of the Collateral Appeal Rule, the Collateral Appeal Doctrine, and have a working knowledge of the many Pennsylvania Appellate Rules in order to successfully pursue a Collateral Appeal.