J-A06038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

KEVIN C. TIERNEY AND IRENE M. 

TIERNEY 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

v.

VERIZON PENNSYLVANIA, INC., 

DANELLA LINE COMPANY, MELCAR, LTD., 

INC., TRAVELERS HOME AND MARINE 

INSURANCE COMPANY 

APPEAL OF: THE TRAVELERS HOME AND 

MARINE INSURANCE COMPANY 

 No. 1675 EDA 2013 

Appeal from the Order Dated April 10, 2013 

In the Court of Common Pleas of Delaware County 

Civil Division at No(s): 12-4399

BEFORE: BENDER, P.J.E., PANELLA, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J. FILED JULY 29, 2014 

The Travelers Home and Marine Insurance Company (Travelers) 

appeals from an order entered on April 10, 2013, in the Court of Common 

Pleas of Delaware County, directing Travelers to respond to written 

discovery requests. After careful review, we remand for the trial court to 

hold a hearing regarding the disputed requests. 

 On November 24, 2011, raw sewage was forced into the home of 

Kevin C. and Irene M. Tierney, causing property damage. See Complaint, 

5/24/12, at ¶ 6. The Tierneys instituted suit on May 24, 2012, against 

Verizon Pennsylvania, Inc., Danella Line Co., and Melcar, Ltd. for negligently 

causing the damage while excavating, installing, repairing, or constructing 
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utility, communication, or data lines near their home. The Tierneys held a 

homeowners’ insurance policy with Travelers at the time the damage 

occurred. In the complaint, the Tierneys included Travelers as a defendant, 

asserting breach of contract, bad faith, and violation of the Unfair Trade 

Practices and Consumer Protection Law,1 based upon Travelers’ alleged 

failure to pay the fair and reasonable costs associated with the damage to 

the Tierneys’ home. 

 On August 17, 2012, the Tierneys served discovery requests on 

Travelers, including 87 interrogatories and 19 document requests. Travelers 

responded, but objected to some of the requests.2 The Tierneys were 

dissatisfied with the response, and on October 12, 2012, they filed a motion 

to compel Travelers to answer all of the written discovery. Travelers filed a 

response in opposition to the motion to compel on November 1, 2012, 

requesting oral argument on the motion. On April 10, 2013, without hearing 

argument or providing an explanation, the trial court issued an order 

granting the motion to compel and ordered Travelers to provide the 

____________________________________________ 

1

 73 P.S. §§ 201-1–201-9.2. 

2

 Travelers objected to discovery requests in several broad categories: (1) 

document requests for all of Travelers’ internal rules, regulations, policies, 

and guidelines; (2) interrogatories seeking detailed information about every 

case for bad faith brought against Travelers within the last 10 years, 

including providing names and addresses of the plaintiffs; and (3) 

interrogatories seeking information about every governmental investigation 

in the company’s history throughout the United States. 
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discovery requested within ten days of the order. Travelers filed a motion 

for reconsideration on April 18, 2013, asserting that the discovery requests 

sought privileged and confidential information. The motion for 

reconsideration was denied, and the instant timely appeal followed. 

We must first determine whether we have jurisdiction to review the 

order granting the motion to compel discovery. “[T]he appealability of an 

order goes directly to the jurisdiction of the Court asked to review the 

order.” Berkeyheiser v. A-Plus Investigations, 936 A.2d 1117, 1123 

(Pa. Super. 2007) (citations omitted). “[G]enerally, appellate courts can 

review only final orders.” Id. at 1122. Discovery orders are interlocutory 

and, therefore, typically unappealable. Jones v. Faust, 852 A.2d 1201, 

1203 (Pa. Super. 2004). However, interlocutory collateral orders are 

immediately appealable as of right under Pa.R.A.P. 313 if the following 

criteria are met: “(1) the matter is separable from and collateral to the 

main cause of action; (2) it involves a right too important to be denied 

review; and (3) is such that the claimed right would be irreparably lost if 

review is postponed until final judgment in the case.” Pugar v. Greco, 394 

A.2d 542 (Pa. 1978) (citation omitted); see Pa.R.A.P. 313(b). 

Discovery orders involving potentially confidential and privileged 

material have been held to be appealable collateral orders satisfying the 

three prongs set forth in Pugar and codified in Pa.R.A.P. 313. 

Berkyheiser, 936 A.2d at 1123-24 (citing Ben v. Schwartz, 729 A.2d 547 

(Pa. 1999)); see also T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. 
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Super. 2008). Such discovery orders are separable from the main cause of 

action because privilege and confidentiality issues can be considered without 

analyzing the merits of the underlying cause of action. See Ben, 729 A.2d 

at 551-52. The “importance” prong is satisfied because privacy concerns 

“implicate rights deeply rooted in public policy, especially where the 

disclosure of such information affects individuals other than those involved in 

this particular case.” Berkeyheiser, 936 A.2d at 1124. Finally, rights 

would be irreparably lost through disclosure of privileged or confidential 

information, since “[s]uch disclosure could not be undone in a subsequent 

appeal.” T.M., 950 A.2d at 1058. Here, the discovery order requires the 

production of allegedly privileged and confidential information related to 

individuals who are not parties to the instant action. Thus, the order in the 

instant matter is appealable as collateral to the main cause of action, and we 

have jurisdiction. 

 Throughout the trial court proceedings and this appeal, Travelers has 

consistently requested a hearing on the motion to compel under Pa.R.C.P. 

211, which states that “[a]ny party or the party’s attorney shall have the 

right to argue any motion.” Pa.R.C.P. 211. This Court has interpreted Rule 

211 as clearly and unambiguously establishing a party’s right to oral 

argument. Tessier v. Pietrangelo, 522 A.2d 88 (Pa. Super. 1987). An 

exception is where the parties have briefed the issues such that oral 

argument would be redundant and the lack of oral argument would not 

result in prejudice to either party. See Gerace v. Holmes Protection of 
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Phila., 516 A.2d 354, 359 (Pa. Super. 1986). Instantly, the parties have 

never briefed discovery issues, and the trial court failed to discuss its 

rationale for granting the motion to compel. Indeed, in its Rule 1925(a) 

opinion, the trial court exclusively analyzed whether the order granting the 

motion to compel is an appealable collateral order and did not discuss the 

merits of the motion. Likewise, the order itself does not provide any 

discussion of the merits—it simply grants the motion without explanation. 

The discovery ordered in this matter is quite broad and involves 

potentially privileged and confidential information. Accordingly, a remand is 

necessary so that the trial court may hold a hearing and analyze the 

privilege and confidentiality issues raised. T.M., supra.

Order vacated. Remanded with direction to the trial court to conduct a 

hearing regarding the motion to compel discovery. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/29/2014