IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean M. Donahue, :

Petitioner :

:

v. : No. 159 C.D. 2020

: SUBMITTED: August 7, 2020

State Civil Service Commission, :

Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION 

PER CURIAM FILED: September 24, 2020

Sean M. Donahue petitions for review, pro se, of the January 23, 2020 letter of 

the State Civil Service Commission (Commission) granting in part and denying in part 

his April 26, 2019 Amended Request for Subpoena Duces Tecum directed to the 

Governor’s Office of Administration (OA). In his Amended Request for Subpoena, 

Mr. Donahue sought to obtain various documents relating to his application for a 

Disability Claims Adjudicator Trainee (DCAT) position with the OA. The 

Commission has also filed an Application for Summary Relief with this Court, asking 

us to dismiss Mr. Donahue’s Petition for Review for lack of jurisdiction. Because we 

conclude that the Commission’s January 23, 2020 letter is not an appealable order

under the Pennsylvania Rules of Appellate Procedure, we grant the Commission’s 

Application for Summary Relief and dismiss Mr. Donahue’s Petition for Review.

Background

Mr. Donahue presently has an administrative appeal pending before the 

Commission, which he describes as follows:

10. The basis of [Mr. Donahue’s] [claims] in the underlying appeal

[before the Commission] is that [the] OA, the Pennsylvania Dep[a]rtment 

of Labor and Industry[,] . . . and [the Commission] are gaming the scores 
2

on civil service exams, that the scoring system is “subjective”, not 

objective, “non[-]uniform” and that the scoring system is inaccurate. 

11. The new scoring system requires [applicants] to grade themselves. 

If they end up at the top of the list, then their examination (which isn’t 

really an examination at all)[] is regraded by the agency.

12. If an applicant’s score does not put him at the top of the list and he 

never moves to the top of the list, he isn’t regraded.

13. A person who grades himself conservatively could end up with a 

score in the mid[-]80s and never be regraded. 

14. A person who grades himself liberal[l]y and gives himself the

highest score possible will end up in the high 90s and possibly be regraded 

down to the low 90s or high 80s but still get interviewed and hired, without 

the person who graded himself conservatively ever being looked at.

15. The person who graded himself conservatively and received a score 

in the mid[-]80s may actually deserve a score in the mid[-]90s but the

agency will never discover this fact.

16. Still further, there is so much subjectivity in the new scoring system 

that the agency can very easily lowball the scores of some candidates and 

inflate the scores of other candidates.

17. [Mr. Donahue] avers that [the] OA, [the Commission,] and [the 

Department of Labor and Industry] engaged in that kind of nefarious 

behavior in the instant case and that they always engage in this kind of 

behavior as a matter of policy.

Pet. for Review, ¶¶ 10-17. Mr. Donahue claims that “state personnel . . . maliciously 

low[]balled my [DCAT] score to undermine the 10 points that I legally get for veterans 

preference.” Record (R.) Item No. 4, Attachment D. Mr. Donahue asserts that, in his 

underlying appeal before the Commission, he “intends to prove that [a]gency personnel

intentionally manipulated the scoring system to keep [him] from getting the job.” R. 

Item No. 5 at 14; see id. at 18.
3

On April 1, 2019, Mr. Donahue filed with the Commission a Request for 

Subpoena Duces Tecum directed to the OA, seeking copies of various documents in 

the OA’s possession relating to Mr. Donahue’s DCAT score and employment

application. On April 15, 2019, the OA filed Objections to the Request for Subpoena. 

On April 26, 2019, Mr. Donahue filed an Amended Request for Subpoena Duces 

Tecum, seeking to obtain the same documents as in his earlier request.

On May 6, 2019, the OA filed with the Commission a Motion to Dismiss Mr. 

Donahue’s appeal, asserting that he “fail[ed] to set forth with specificity the basis 

underlying his discrimination claim.” R. Item No. 9. On January 10, 2020, the 

Commission denied the Motion to Dismiss, finding that “[Mr. Donahue] has alleged 

sufficient facts to recognize a claim of discrimination for violation of the civil service 

rules and discrimination based on non-merit factors.” R. Item No. 11.

By letter dated January 23, 2020, the Commission granted in part and denied in 

part Mr. Donahue’s Amended Request for Subpoena Duces Tecum. Specifically, the 

Commission denied Mr. Donahue’s request for Items 7, 9, 11, and 12, but directed the 

OA to produce the remaining 8 items requested by Mr. Donahue.1 The items for which 

 

1 The Commission denied Mr. Donahue’s subpoena request for the following items:

7. Please email me a complete and thorough explanation as to why my [DCAT] score 

dropped from 103 to 80.

. . . .

9. Please email me complete copies of any emails and memos in which hiring me or 

not hiring me was discussed.

. . . .

11. Please email me a complete summary of all conversations and discussions that 

occurred in which hiring me or not hiring me, my score[,] or [my] application to DCAT 

were discussed.
4

the Commission granted the subpoena related to the OA’s consideration of Mr. 

Donahue’s job application and the scoring of his civil service exam, as well as

information regarding other applicants for the DCAT position and the scoring of their 

civil service exams.

Of relevance to the present appeal, in its January 23, 2020 letter to Mr. Donahue, 

the Commission stated: “The Commission has denied your request for Item #9 because 

it is overly broad. . . . [T]he Commission has denied your request for Item #12 because 

it is irrelevant to the challenge of your score for the DCAT position.” Pet. for Review, 

Ex. A.1. By email dated January 28, 2020, Mr. Donahue requested reconsideration of 

the Commission’s decision, which the Commission denied by letter dated February 3, 

2020.

On February 12, 2020, Mr. Donahue filed his Petition for Review with this 

Court, asserting that the Commission’s January 23, 2020 letter is immediately 

appealable as a collateral order. In his Petition for Review, Mr. Donahue avers that 

“he needs the information contained in the documents and records that are responsive 

to items #9 & #12 to prove his case” before the Commission. Pet. for Review, ¶ 18.2

 

12. Please identify the names of all individuals who were hired for DCAT, the dates 

of their hire[,] and the lists from which they were hired. . . .

R. Item No. 2. In his Petition for Review, Mr. Donahue challenges the Commission’s denial of Items 

9 and 12 only.

2 On February 21, 2020, after Mr. Donahue filed the present appeal, the Commission denied 

the OA’s Motion to Seal the Record, finding that the OA “failed to assert a countervailing interest to 

overcome the statutory requirement that civil service hearings be open to the public.” R. Item No. 

23.
5

On July 9, 2020, the Commission filed an Application for Summary Relief,3

asserting that this Court lacks jurisdiction over the Petition for Review because the 

January 23, 2020 letter is not an appealable order.

On March 11, 2020, this Court issued an Order, stating in relevant part:

Because it appears that the Commission’s January 23, 2020 letter is not a 

final order as defined by Pa.[]R.A.P. 341, and it is not readily apparent 

whether the letter is a collateral order as defined by Pa.[]R.A.P. 313, the 

parties shall address the appealability of the Commission’s January 23, 

2020 letter in their principal briefs on the merits or other appropriate 

motion.

Cmwlth. Ct. Order, 3/11/20, at 1. In compliance with our Order, both parties have 

addressed the appealability issue in their briefs filed with this Court.

Analysis

In his Petition for Review, Mr. Donahue asserts that the Commission abused its 

discretion by denying his “subpoena request for items #9 & #12 because the requests 

were not ‘overly broad.’” Pet. for Review, ¶ 23. He also avers that “because the 

information contained in the records and documents that are responsive to items #9 & 

#12 is directly relative and essential to the case he is trying to prove, the [OA] must be 

ordered to produce the records and documents responsive to those items.” Id. 

 

3 This Court may grant an application for summary relief only if the moving party’s right to 

judgment is clear and there are no material issues of fact in dispute. Pa. R.A.P. 1532(b); Eleven 

Eleven Pa., LLC v. Com., 169 A.3d 141, 145 (Pa. Cmwlth. 2017). When ruling on an application for 

summary relief, we must view the evidence in the light most favorable to the non-moving party. 

Eleven Eleven, 169 A.3d at 145.
6

Before we can review the merits of Mr. Donahue’s appeal, we must address the 

appealability of the Commission’s January 23, 2020 letter, as it implicates this Court’s 

jurisdiction.

4

Generally, a litigant may appeal only from a final order. However, Pa. R.A.P.

313(a) permits a litigant to file an appeal as of right from a collateral order of an 

administrative agency. Pa. R.A.P. 313(b) defines a “collateral order” as “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.” Thus, 

an order is immediately appealable as a collateral order if: (1) the order 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 were 

postponed until final judgment in the case, the claim would be irreparably lost. H.R. v. 

Dep’t of Pub. Welfare, 676 A.2d 755, 759 (Pa. Cmwlth. 1996). These requirements

must be construed narrowly, and all three prongs must be satisfied before this Court 

may conduct appellate review of a collateral order. Rae, 977 A.2d at 1126.

5

With regard to the first prong of the collateral order test, “if the resolution of an 

issue concerning a challenged [decision] can be achieved independent from an analysis 

of the merits of the underlying dispute, then the order is separable” from the main cause 

of action. MarkWest Liberty Midstream & Res., LLC v. Clean Air Council, 71 A.3d 

 

4 Whether an order is appealable under the collateral order doctrine is a question of law for 

which our standard of review is de novo and our scope of review is plenary. Rae v. Pa. Funeral Dirs. 

Ass’n, 977 A.2d 1121, 1126 n.8 (Pa. 2009).

5 Although not argued by Mr. Donahue, we note that the Commission’s January 23, 2020 letter 

could have been characterized as an interlocutory order potentially appealable by permission, rather 

than a collateral order. See 42 Pa. C.S. § 702(b); Pa. R.A.P. 312, 1311. However, Mr. Donahue did 

not seek relief under 42 Pa. C.S. § 702(b), Pa. R.A.P. 312, or Pa. R.A.P. 1311. For this reason, we 

limit our discussion to the letter’s appealability under the collateral order doctrine.
7

337, 342 (Pa. Cmwlth. 2013) (en banc). Here, in his appeal before the Commission, 

Mr. Donahue seeks “to prove that the current civil service testing system is ‘subjective’, 

‘not uniform’ and that the Commonwealth exploited this circumstance to ‘low[]ball’

his score.” Pet. for Review, ¶ 22. In Items 9 and 12 of his subpoena request, Mr. 

Donahue requested “copies of any emails and memos in which hiring [him] or not 

hiring [him] was discussed” and “the names of all individuals who were hired for 

DCAT, the dates of their hire[,] and the lists from which they were hired.” R. Item No. 

2. In its January 23, 2020 letter, the Commission stated that it denied those requests

because Item 9 was “overly broad” and Item 12 was “irrelevant” to Mr. Donahue’s 

challenge to the propriety of his DCAT score. Pet. for Review, Ex. A.1.

In essence, the Commission denied the challenged subpoena requests solely on 

the basis of breadth and relevance. To determine if that decision was proper, we would 

not need to examine the merits of Mr. Donahue’s underlying discrimination claims. In 

other words, by reviewing the language of the subpoena requests themselves, we would 

be able to determine if they were sufficiently specific and relevant to warrant 

production of the items, without actually analyzing whether the OA improperly scored 

his civil service exam or otherwise discriminated against him. Therefore, we conclude 

that the Commission’s January 23, 2020 letter is separable from and collateral to the 

main cause of action.

While Mr. Donahue has satisfied the first prong of the collateral order test, we 

conclude that he fails to satisfy the second and third prongs of the test. With regard to 

the second prong, a decision involves a right too important to be denied review only if 

it is “deeply rooted in public policy going beyond the particular litigation at hand.” 

Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999). “[I]t is not sufficient that the issue 

be important to the particular parties.” Id. The claims must be analyzed “in the context 
8

of the broad public policy interests that they implicate” and not “with respect to the 

specific facts of the case.” Id.

Here, Mr. Donahue does not explain how the Commission’s January 23, 2020 

letter implicates rights beyond those involved in his particular case. In his Petition for 

Review, Mr. Donahue contends that he “needs the information contained in the 

documents and records that are responsive to items #9 & #12 to prove his case.” Pet. 

for Review, ¶ 18. As explained above, the crux of Mr. Donahue’s case is the OA’s 

alleged impropriety in scoring his civil service exam.

6

 The averments in his Petition 

for Review relate only to how the Commission’s January 23, 2020 letter impacts his 

ability to succeed in his appeal before the Commission; he identifies no broad public 

policy interests implicated by the letter.7 Thus, Mr. Donahue fails to satisfy the second 

prong of the collateral order test.

Finally, we agree with the Commission that meaningful review of the January 

23, 2020 letter will be available to Mr. Donahue after the Commission issues a final

decision in the underlying case. By objecting to the denial of his subpoena request for 

Items 9 and 12 in the proceedings before the Commission, see R. Item No. 15, Mr. 

Donahue has preserved the issue for future appeal to this Court. Cf. Quinn v. Pa. State 

Civil Serv. Comm’n, 703 A.2d 565, 570 (Pa. Cmwlth. 1997) (on appeal from the 

 

6 As noted earlier in this Opinion, the Commission granted the majority of Mr. Donahue’s 

subpoena requests, directing the OA to produce various documentation related to its consideration of 

Mr. Donahue’s job application, the scoring of his civil service exam, and the scoring of other 

applicants’ civil service exams.

7

In his appellate brief, Mr. Donahue argues, for the first time, that he “could not wait until 

after the [underlying] case was resolved to pursue the matters being raised herein without bearing the 

risk of waiver by [the Commission’s] imposed 20[-]day time clock on subpoena matters.” Donahue 

Br. at 5-6. In support of this claim, Mr. Donahue contends that the Commission rejected his untimely 

challenges to its subpoena rulings in three prior cases before the Commission. Id. at 10-11. However, 

we cannot consider matters that are beyond the scope of the present record. See Umedman v. 

Unemployment Comp. Bd. of Review, 52 A.3d 558, 564 (Pa. Cmwlth. 2012).
9

Commission’s final order denying the petitioner’s statutory appeal, this Court

concluded that the Commission did not abuse its discretion in refusing to issue certain 

requested subpoenas, because the proposed witnesses’ testimonies were irrelevant to 

the issues raised in the petitioner’s appeal alleging discrimination in the scoring of his 

civil service exam). Therefore, Mr. Donahue fails to satisfy the third prong of the 

collateral order test.

For these reasons, we conclude that the Commission’s January 23, 2020 letter 

does not meet all three requirements for appellate review of a collateral order under Pa. 

R.A.P. 313. See Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003) (“[E]ach prong of the 

collateral order doctrine must be clearly present before an order may be considered 

collateral.”).8

Conclusion

Accordingly, because we conclude that the Commission’s January 23, 2020 

letter is not an appealable order under Pa. R.A.P. 313, we grant the Commission’s 

Application for Summary Relief and dismiss Mr. Donahue’s Petition for Review.

 

8

In a separately filed motion, Mr. Donahue asks this Court, in the alternative, to direct the 

Commission to “reissue” its January 23, 2020 letter partially denying his subpoena request and its 

February 3, 2020 letter denying reconsideration in the format of “orders.” Mr. Donahue claims that 

such a change in format would render the letters appealable under Pa. R.A.P. 313. We disagree. 

Reformatting the letters would not automatically render them appealable, as it is the substance of the 

decision that determines whether it is a collateral order. See Pa. R.A.P. 313(b); Ben v. Schwartz, 729 

A.2d 547, 551-52 (Pa. 1999). Even if the letters were reformatted as “orders,” they would still not be 

appealable at this time for the reasons explained above. Therefore, we deny Mr. Donahue’s “Motion 

to Require [the Commission] to Reissue its Denial in the Format of an Order.”
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean M. Donahue, :

Petitioner :

:

v. : No. 159 C.D. 2020

:

State Civil Service Commission, :

Respondent :

PER CURIAM

O R D E R

AND NOW, this 24th day of September, 2020, we hereby GRANT the 

Application for Summary Relief filed by the State Civil Service Commission 

(Commission), DISMISS the Petition for Review filed by Sean M. Donahue, and

DENY Mr. Donahue’s Motion to Require the Commission to Reissue its Denial in 

the Format of an Order.