When an interlocutory order is “separable from and collateral to the main cause of action,” involves a “right … too important to be denied review,” and presents a question that will be “irreparably lost” if “review is postponed until final judgment in the case,” that order is immediately appealable as a collateral order. Pa. R.A.P. 313. Although the Supreme Court has been clear that one who seeks to rely on the collateral order doctrine as the basis for appeal must be able to demonstrate compliance with each prong of the test, in practice the Court has begun to treat certain categories of interlocutory orders as appealable on a “category-wide” basis. That is the approach the Court has taken with orders requiring disclosure of information notwithstanding a claim of privilege, for example. See Com. v. Williams, 86 A.3d 771, 780 (Pa. 2014) (there is a “category-wide exception” to the all claims/all parties finality rule for discovery orders that are alleged to violate a “protected privilege, such as the attorney-client privilege or the work-product doctrine” subject to the requirement that appealing party demonstrate compliance with all three prongs where privilege claim is “contested in good faith”). As the Court has said, in such cases, “[o]nce putatively privileged material is in the open, the bell has been rung, and cannot be unrung by a later appeal.” Com. v. Harris, 32 A.3d 243, 249 (Pa. 2011).
Orders denying intervention appear to be approaching the “category-wide” status of appealability under the collateral order doctrine, at least in cases that arise in trial courts. In Markham v. Wolf, 136 A.3d 134, 138 n. 4 (Pa. 2016), state legislators including Senators Scarnatti and Corman sought to intervene in an original jurisdiction action in the Commonwealth Court challenging Governor Wolf’s executive order that established organizational labor rights for domestic home care workers, allegedly in violation of Pennsylvania’s labor laws. After the Commonwealth Court denied intervention in the ongoing lawsuit, the senators took an immediate appeal to the Supreme Court. The Supreme Court proceeded directly to the merits (affirming the denial of intervention), simply observing without further discussion that an order denying intervention is a collateral order: “We have jurisdiction over Appellants’ appeal from the Commonwealth [Court]’s order pursuant to Pa.R.A.P. 313. See In re The Barnes Foundation, 582 Pa. 370, 871 A.2d 792, 794–95 (Pa. 2005) (holding order denying intervenor status immediately appealable under collateral order doctrine).”
Justice Todd, who authored Markham v. Wolf in 2016, also wrote K.C. v. L.A., 128 A.3d 774 (Pa. 2015), a 2015 child custody case in which she engaged in extensive analysis of the history and rationale for allowing immediate appeals under the collateral order doctrine from trial court orders denying intervention, and in which, as in Markham, she relied on Chief Justice Saylor’s decision in In re The Barnes Foundation to conclude that an immediate appeal from denial of intervention in a trial court proceeding is necessary because waiting to appeal until after the case is concluded on the merits interferes with the subsequent trial court proceedings:
While Barnes did not involve a child custody action, its language is broad and applies to any “common pleas court’s order denying intervention.” Barnes, 871 A.2d at 794. Moreover, the rationale behind requiring the immediate appeal of a denial of intervention in Barnes—namely, the risk of interference with subsequent trial proceedings—is even more pronounced in the context of a child custody action, given the significant interests at stake. We, therefore, find that Barnes applies to the trial court’s order in the instant case. Accordingly, because Barnes unequivocally requires any party who was denied intervention and who satisfies the requirements of Rule 313 to appeal from the order denying intervention within 30 days of its entry or lose the right to appeal the order entirely, Appellants’ right to appeal from the order denying intervention in the instant case will be manifestly lost if they are not permitted to appeal the order.
128 A.3d at 780.
In Barnes, a person seeking to participate in orphans’ court proceedings involving the proposed restructuring of the foundation behind Dr. Barnes famous art collection was denied intervention, failed to appeal from the trial court’s order denying his petition to intervene, and, instead, appealed from the final order in the case. The Supreme Court quashed the appeal because the appellant had failed to obtain intervenor status below, and thus was not a party to the underlying action. The Court reasoned that “a common pleas court’s order denying intervention is one type of order which must be appealed within thirty days of its entry under Rule of Appellate Procedure 903, or not at all, precisely because the failure to attain intervenor status forecloses a later appeal.” 871 A.2d at 794. The Court explained that requiring a party who has satisfied the requirements of the collateral order doctrine to timely appeal from the denial of intervention, rather than wait to appeal that denial after final judgment, was the preferred approach, so as to avoid interfering in trial court proceedings that occurred after the denial of intervention.
The takeaway from Barnes and K.C. v. L.A., as reflected in Markham v. Wolf, is that denial of intervention in a trial court proceeding likely will be treated as a collateral order. The Court was careful to mention in Barnes and K.C. v. L.A. that a trial court order denying intervention will only be treated as a collateral order if the appellant “satisfies the requirements of Rule 313,” but in Markham v. Wolf the Court did not engage in the collateral order analysis to determine if the test was satisfied, indicating movement toward a category wide determination that orders denying intervention in trial court proceedings are collateral. Of course, given that denial of intervention in a trial court proceeding likely will be treated as a collateral order that must be appealed immediately, and that the determination as to whether an order is collateral is a judicial conclusion reached after the fact, counsel should assume that all orders denying intervention in trial court proceedings are collateral and must be appealed immediately.
The law is much murkier concerning administrative agency orders that deny petitions to intervene. In Sugarhouse HSP Gaming, LP v. Pa. Gaming Control Bd., 136 A.3d 457, 467 n.18 (Pa. 2016), another recent Justice Todd opinion, the Court refused to quash an intervenor’s appeal from the Gaming Board’s final order where a basis for the appeal was the Gaming Board’s limitation on the intervenor’s right to participate in particular issues, reasoning that the order limiting intervention was not a collateral order because the Gaming Board’s unique procedural rules governed intervention, not the Rules of Civil Procedure, and because the successful applicant (an intervenor on appeal), not the Gaming Board, raised the issue before the Court, with Gaming Board taking no position. For agency intervention denials, therefore, it appears that courts will continue to apply the rigorous three pronged collateral order analysis to attempts to appeal based on the collateral order doctrine. A review of cases involving appeals from agency orders denying intervention reveals a case-by-case approach in which some are deemed collateral and permitted, while others are not and quashed.
For further discussion on this topic, see G. Ronald Darlington, Kevin J. McKeon, Daniel R. Schuckers & Kristen W. Brown, Pennsylvania Appellate Practice (2016-2017 Ed.) § 313:19.3.
About the Author:
Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.