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Posted by on Feb 14, 2018 in Appellate Procedure, Civil Procedure | 19 comments

Shearer v. Hafer: Interlocutory Appeal unavailable for civil pretrial dispute over right to counsel at psychological examination

In Shearer v. Hafer, the Supreme Court of Pennsylvania rules 6-1 that an interlocutory appeal was not appropriate in a pretrial discovery dispute over whether a plaintiff has the right to counsel at a psychological examination because the right involved was not important, and would not be lost on appeal.

The case arises out of a personal injury action. The Defendants asked for a psychological exam pursuant to Pa.R.C.P. 4010, and Mrs. Shearer insisted on having her attorney present. Mr. Hafer and his codefendant had a doctor who alleged that having anyone else present during the examination could result in the introduction of bias and distortion of the data, and refused. After the Court ruled for the Defendants, Shearer asked for certification of interlocutory appeal pursuant to Pa.R.A.P. 313, which allows appeal if 1) the issue is “separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that, if review is postponed until final judgment in the case, the claim will be irreparably lost.”

Both parties agreed that this case was appropriate for interlocutory appeal—but such an appeal is jurisdictional, and while SCOPA retains King’s Bench authority to step into any case at any time, it prefers to see jurisdictional bars as actual bars to its authority to step in.

Majority by Todd: Right to counsel at pretrial examination is not of constitutional importance, will not be lost on direct appeal

In a 6-1 decision, Justice Todd and the Court hold, sua sponte, that the appeal fails to meet the last two of the three prongs of the interlocutory appeal rule, and the case must be remanded without reaching the merits. The majority takes a long look at the history of interlocutory appeals in the Federal Courts, and notes that Pennsylvania is more permissive than the Federal Courts on granting such appeals. (The Court does not discuss this, but this difference in policy might be due in part to Federal Jurisdictional rules, which are not a concern for courts of general jurisdiction, i.e. state courts).

The Court recites the three-part test for interlocutory appeals, and finds that the present appeal fails on the latter two prongs. While the appeal is separable from the main cause of action, and therefore satisfies the first prong, the alleged right to counsel at a psychological examination is not the type of constitutional interest or interest deeply rooted in public policy which “would go unprotected without immediate appeal” such that it overrides the “efficiency interests served by the final order rule.”

Furthermore, the plaintiff’s right to counsel at such an examination will not be irreparably lost if the matter waits until final appeal for adjudication. Although Mrs. Shearer will have to sit through an examination without counsel, she can ultimately prevail on appeal, obtain a new trial, and have counsel at the examination which will be used in the subsequent new trial. Thus, her rights will not be lost.

Concurrence by Wecht: Non-delegation doctrine should prohibit the rules invoked here

Justice Wecht reiterates the concerns that gave rise to Protz v. WCAB last year, detecting “a palpable risk that reliance upon standards written by nongovernmental organizations, such as the APA . . . may run afoul of the non-delegation doctrine.” By incorporating guidelines promulgated by the National Academy of Neuropsychology into its code of conduct, the State Board of Psychology (let’s take a moment to consider why it’s a “State” board, and not a Commonwealth board, by the way) may have promulgated unenforceable ethical rules in this respect. Wecht emphasizes that the issue is not presented in this appeal, but that agencies should be careful in this respect.

Dissent by Mundy: “Importance” prong is not limited to matters of constitutional importance, and right to counsel may be essentially lost on direct appeal in this case

 Justice Mundy would not interpret the “importance” prong as referring only to constitutional matters. “Rule-based rights may well be significant relative to the final order rule and be deeply rooted in public policy.” Mundy also expresses her concern that the passage of time may render a subsequent psychological exam prior to a new trial may indeed cause the rights at issue to be lost.

Conclusion: Interlocutory Appeals Disfavored

The holding in this case demonstrates that interlocutory appeals are disfavored. Even where both parties and the lower court agree that an appeal is appropriate and will save time in the action, the appellate courts can refuse to hear it. I expect that this decision may limit the interlocutory appeals asked for, taken and resolved on the merits in the future.

Additionally, Justice Wecht’s concurrence invites future challenges to AMA and NAN guidelines making their way into the law. Attorneys would be wise to keep an eye out for challenges to these types of statutes in the future.

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