J-S16013-16, J-S16014-16

2016 PA Super 147

MEYER-CHATFIELD CORP. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

Appellants

MEYER-CHATFIELD CORP. AND MEYER 

CHATFIELD ADMINISTRATIVE SERVICES, 

LLC

 Appellees

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

 Appellants

No. 1576 EDA 2015

Appeal from the Judgment Entered May 4, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-29858 

 2013-30326 

 2014-11331 

2015-02972 

-------------------------------------------------------------------------------------
J-S16013-16, J-S16014-16

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MEYER-CHATFIELD CORP.

 Appellee

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

 Appellants

MEYER-CHATFIELD CORP. AND MEYER 

CHATFIELD ADMINISTRATIVE SERVICES, 

LLC

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

Appellees

v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

Appellants

No. 1577 EDA 2015

Appeal from the Judgment Entered May 4, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-29858 

 2013-30326 

 2014-11331 

 2015-02972

-------------------------------------------------------------------------------------
J-S16013-16, J-S16014-16

- 3 -

MEYER-CHATFIELD CORP.

 Appellee

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

 Appellants

_________________________________

MEYER-CHATFIELD CORP.

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

Appellee

v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

APPEAL OF JOSEPH BYRD AND DAVID 

SCHWARTZ

No. 1578 EDA 2015

Appeal from the Judgment Entered June 11, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-29858 

 2013-30326 

 2014-11331 

 2015-02972

-------------------------------------------------------------------------------------
J-S16013-16, J-S16014-16

- 4 -

MEYER-CHATFIELD CORP.

 Appellee

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

 Appellants

_________________________________

MEYER-CHATFIELD CORP. AND MEYER 

CHATFIELD ADMINISTRATIVE SERVICES, 

LLC

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

Appellants

No. 1896 EDA 2015

Appeal from the Judgment Entered May 4, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-29858 

 2013-30326 

 2014-11331 

2015-02972 
J-S16013-16, J-S16014-16

- 5 -

____________________________________________________________

MEYER-CHATFIELD CORP.

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT

AND DANIEL BARBAREE

_______________________________

MEYER-CHATFIELD CORP. AND MEYER 

CHATFIELD ADMINISTRATIVE 

SERVICES, LLC

 v.

BANK FINANCIAL SERVICES GROUP, 

STEVEN GOLDBERG, DAVID PAYNE, 

ARNOLD WINICK, WILLIAM BORCHERT 

AND DANIEL BARBAREE

APPEAL OF JOSEPH BYRD AND DAVID 

SCHWARTZ

IN THE SUPERIOR COURT 

OF PENNSYLVANIA

No. 2330 EDA 2015

Appeal from the Judgment Entered May 4, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2013-29858 

 2013-30326 

 2014-11331 

2015-02972 

BEFORE: OTT, J., DUBOW, J., and JENKINS, J. 

OPINION BY JENKINS, J.: FILED JULY 14, 2016

These consolidated appeals are from discovery orders issued on May 4, 

2015 and June 11, 2015 by the Court of Common Pleas of Montgomery 

County (“trial court”). In the appeals of the Bank Financial Services Group 

appellants (Bank Financial Services Group, Steven Goldberg, David Payne, 
J-S16013-16, J-S16014-16

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Arnold Winnick, William Borchert, and Daniel Barbaree) (collectively “the 

BFS appellants”),1 we quash the appeal at 1576 EDA 2015; we quash in part 

and reverse and remand in part at 1577 EDA 2015; and we quash the 

appeal at 1896 EDA 2015. In the appeals of David Schwartz and Joseph 

Byrd, we quash in part and affirm in part at 1578 EDA 2015, and we quash 

their appeal at 2330 EDA 2015. 

FACTUAL AND PROCEDURAL HISTORY

Background and pleadings. Meyer-Chatfield is a company in the 

business of providing bank-owned life insurance (“BOLI”), a highly 

specialized financial product. BOLI is a single premium life insurance 

contract specifically designed for banks to earn tax-free income, among 

other benefits. Since its beginnings in 1992, Meyer-Chatfield has been 

engaged in the design, marketing, sales and servicing of BOLI products to 

the banking community nationwide. 

Goldberg, Payne, Winnick, Borchert, Barbaree, Schwartz and Byrd 

were employees of Meyer-Chatfield who left the company to work for Bank 

Financial Services Group, a direct competitor of Meyer-Chatfield. During 

their employment with Meyer-Chatfield, the individuals signed restrictive 

covenants promising, inter alia, not to compete with Meyer-Chatfield upon 

____________________________________________

1 To be clear, we use “BFS” as the collective designation for all appellants 

except Joseph Byrd and David Schwartz.
J-S16013-16, J-S16014-16

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their termination or separation from the company or provide confidential 

information about Meyer-Chatfield to any other individual or entity. 

On October 2, 2013, Meyer-Chatfield filed a complaint in the trial court 

at No. 2013-29858 naming Bank Financial Services Group, Goldberg and 

Payne as defendants. The complaint alleged that Payne and Goldberg, 

together with Bank Financial Services Group, formed and executed a plan to 

take Meyer-Chatfield personnel, clients, and confidential and proprietary 

information, in violation of the individual defendants' contractual and 

fiduciary obligations to Meyer-Chatfield, and in an unfairly competitive 

manner. 

On October 7, 2013, Bank Financial Services Group, Goldberg, the 

Steven Goldberg Sole Proprietorship, Winick, and Payne sued MeyerChatfield seeking declaratory judgment and a special/preliminary injunction. 

They sought a declaration that the restrictive covenants and covenants not 

to compete contained in Goldberg’s contract were void and unenforceable, 

alleged breach of contract by Meyer-Chatfield, asserted a breach of the duty 

of good faith and fair dealing, and sought to enjoin Meyer-Chatfield’s alleged 

tortious interference with existing and prospective business relationships in 

addition to defamation and libel. 

On October 18, 2013, the trial court consolidated these actions at No. 

2013-30326. 
J-S16013-16, J-S16014-16

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Meyer-Chatfield subsequently filed two additional complaints at Nos. 

2014-11331 and 2015-02972. The complaint at No. 2014-11331 named 

Winick, Borchert, Barbaree, Savino, Savino Financial Group, Schwartz and 

Byrd as defendants. The complaint at No. 2015-02972 named Goldberg, 

Payne, Integrated Financial Services of PA, Inc. d/b/a BFS Group, IFS, Inc. 

d/b/a Bank Financial Services Group, Winick, Byrd, Schwartz, Borchert, 

Barbaree, Savino, and the Savino Financial Group as defendants. The trial 

court consolidated these actions with the actions at No. 2013-30326.

The trial court held several days of hearings on the parties’ crossmotions for preliminary injunctions. On March 13, 2014, prior to completion 

of preliminary injunction hearings, the trial court granted Meyer-Chatfield’s 

request for an “interim” injunction against BFS. BFS appealed the interim 

injunction to the Superior Court. On October 7, 2014, the Superior Court 

vacated the March 13, 2014 interim injunction at 1092 EDA 2014, holding 

that it was premature for the trial court to enter an interim injunction before 

the completion of hearings on the parties’ cross-motions for preliminary 

injunctions.

Discovery disputes. Not only has there been extensive litigation 

relating to the parties’ injunction motions, but there has also been 

protracted litigation over discovery. In this appeal, we focus on two 

discovery disputes that took place after the Superior Court vacated the 

interim injunction.
J-S16013-16, J-S16014-16

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First dispute. On October 21, 2014, Meyer-Chatfield filed a motion to 

quash (1) subpoenas to attend preliminary injunction hearings that BFS 

served on several non-parties and (2) a notice to attend the preliminary 

injunction hearing that the BFS appellants served on Meyer-Chatfield’s 

corporate designee. On May 4, 2015, the trial court granted MeyerChatfield’s motion to quash. On May 18, 2015, the BFS appellants filed a 

notice of appeal to this Court at 1576 EDA 2015 from this order.

Second dispute. On January 6, 2015, Meyer-Chatfield served 

interrogatories and document requests on the BFS appellants. MeyerChatfield did not serve Byrd or Schwartz with any discovery requests. On 

February 11, 2015, the BFS appellants produced a single one-page 

document in response to Meyer-Chatfield's discovery requests. Otherwise, 

the BFS appellants objected to the discovery requests as overbroad, 

burdensome, costly, and protected under the attorney-client, work product 

and joint defense privileges.

On February 17, 2015, Meyer-Chatfield filed a motion to compel the 

BFS appellants, Byrd and Schwartz to provide full and complete responses to 

its discovery requests. Meyer-Chatfield served the motion upon both 

counsel for the BFS appellants and counsel for Byrd and Schwartz. The BFS 

appellants filed a response claiming that Meyer-Chatfield’s requests were 

burdensome and overbroad, and that certain materials were protected under 
J-S16013-16, J-S16014-16

- 10 -

the attorney-client, work product and joint defense privileges. Byrd and 

Schwartz did not file any response to the motion. 

On May 4, 2015, the trial court entered an order (“First Compel 

Order”) granting the motion to compel and directed the BFS appellants to 

provide full and complete answers, “without objection”, to Meyer-Chatfield’s 

discovery requests. The order further directed the BFS appellants, Byrd and 

Schwartz to (1) produce all business and personal computers and portable 

electronic devices, business or personal, in use since January 1, 2012, 

including all hard drives, servers, and email mailboxes for inspection by 

Meyer-Chatfield's forensic computer analyst, and (2) turn over all passwords 

to personal and business email accounts, computers, and portable devices 

for inspection by the same analyst.

On May 18, 2015, the BFS appellants filed a notice of appeal at 1577 

EDA 2015 from the First Compel Order. On May 21, 2015, the BFS 

appellants filed a motion in the trial court seeking reconsideration of the First 

Compel Order.

On May 20, 2015, Byrd and Schwartz filed a notice of appeal at 1578 

EDA 2015 from the First Compel Order. On the same date, Byrd and 

Schwartz filed a motion in the trial court seeking reconsideration of the First 

Compel Order.

On June 11, 2015, more than thirty days after the First Compel Order, 

the trial court entered an order amending the First Compel Order (“Second 
J-S16013-16, J-S16014-16

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Compel Order”). The Second Compel Order purported to provide a 

procedure for preventing privileged materials from falling into MeyerChatfield’s hands.2

On June 16, 2015, the BFS appellants filed a notice of appeal at 1896 

EDA 2015 from the Second Compel Order. On July 9, 2015, Byrd and 

Schwartz filed a notice of appeal from the Second Compel Order at 2330 

EDA 2015.

DISCUSSION

We first address the BFS appellants’ appeals at 1576, 1577 and 1896 

EDA 2015.

____________________________________________

2 The Second Compel Order provided: (1) Cornerstone Legal Consultants 

(“Cornerstone”), the group to which Meyer-Chatfield's forensic computer 

analyst belonged, would make “forensically sound bit-stream images of the 

computers and portable electronic devices and external storage media (the 

‘Computer Images’) and return such original media to ... the BFS appellants 

... after completion of the imaging”; (2) Cornerstone would retain the 

Computer Images in a secure manner pending the resolution of the case; (3) 

the BFS appellants would give Cornerstone a list of search terms for the 

purposes of identifying and segregating all privileged documentation and 

information (the “Privilege Keywords”); (4) Cornerstone would use the 

Privilege Keywords to run searches on the Computer Images and produce all 

documents containing Privilege Keywords (“Privilege Hits”) to the BFS 

appellants; (5) the BFS appellants would review and redact the Privilege Hits 

within thirty days or another appropriate timeframe ordered by the Court 

and reasonably identify the Privilege Hits to determine whether they were 

privileged in fact; (6) the BFS appellants would identify each withheld 

document on a privilege log; (7) to the extent any privileged material was 

observed by Cornerstone, such observation would not constitute a waiver of 

any privilege; and (8) Cornerstone would inspect the Computer Images for 

non-privileged materials only and maintain any privileged material in the 

strictest confidence.
J-S16013-16, J-S16014-16

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1576 EDA 2015. As a threshold question, we must determine 

whether this appeal is properly before us. Roman v. McGuire Memorial, 

127 A.3d 26, 31 (Pa.Super.2015) (subject matter jurisdiction is nonwaivable and can be raised at any time by any party and by court sua 

sponte). 

The BFS appellants appeal from the May 4, 2015 order granting 

Meyer-Chatfield’s motion to quash subpoenas on non-parties and a notice to 

attend on Meyer-Chatfield’s corporate designee. The BFS appellants assert 

that this order is appealable under the collateral order doctrine. We 

disagree.

“A collateral order is 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.” Pa.R.A.P. 

313(b). “[T]he collateral order doctrine is a specialized, practical application 

of the general rule that only final orders are appealable as of right.” Melvin 

v. Doe, 836 A.2d 42, 46–47 (Pa.2003). “Thus, Rule 313 must be interpreted 

narrowly, and the requirements for an appealable collateral order remain 

stringent in order to prevent undue corrosion of the final order rule.” Id. at 

47. “To that end, each prong of the collateral order doctrine must be clearly 

present before an order may be considered collateral.” Id.
J-S16013-16, J-S16014-16

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Generally, discovery orders are deemed interlocutory and not 

immediately appealable, because they do not dispose of the litigation. 

Branham v. Rohm and Haas Co., 19 A.3d 1094, 1101 (Pa.Super.2011). 

On the other hand, discovery orders requiring disclosure of privileged 

materials generally are appealable under Rule 313 where the issue of 

privilege is separable from the underlying issue. Ben v. Schwartz, 729 

A.2d 547, 551–53 (Pa.1999). For example, an order denying a motion to 

quash a subpoena for a deposition is appealable under Rule 313 when the 

information sought is privileged under federal health and safety regulations. 

Price v. Simakas Co., Inc., 133 A.3d 751, 755 (Pa.Super.2016). 

The order at issue does not require disclosure of allegedly privileged 

information. Instead, it prevents disclosure of sought-after information, 

privileged or otherwise, by quashing subpoenas issued to non-parties and 

the notice to attend issued to Meyer-Chatfield’s corporate designee. Thus, 

this order is not appealable under Rule 313.

Branham, a decision relied upon by the BFS appellants, is not on 

point. Branham held that an order denying a non-resident, non-party 

corporation’s motion to quash a discovery subpoena was appealable under 

Rule 313, because it involved an important question concerning the extent of 

the trial court’s subpoena power over a foreign corporation which was 

qualified to do business in Pennsylvania. The order in Branham required 
J-S16013-16, J-S16014-16

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the disclosure of information; the order in question here granted the motion 

to quash and therefore precludes disclosure of information.

Thus, we quash the appeal at 1576 EDA 2105.

1577 EDA 2015. This is the BFS appellants’ appeal from the First 

Compel Order on May 4, 2015. As stated above, Meyer-Chatfield moved to 

compel the BFS appellants to answer its interrogatories and document 

requests. The BFS appellants objected on the grounds that the discovery 

requests were overbroad, burdensome, costly and called for privileged 

materials. The First Compel Order directed the BFS appellants to provide full 

and complete responses, “without objection”,3to Meyer-Chatfield’s requests, 

and it further instructed the BFS appellants to turn over its computers, 

electronic devices and passwords to Meyer-Chatfield’s forensic computer 

analyst. 

We know of no decision, nor do the BFS appellants point us to any, in 

which an order directing disclosure of non-privileged materials is appealable 

under the collateral order doctrine. Thus, to the extent that the First Compel 

Order requires production of non-privileged materials, we hold that Rule 313 

is inapplicable and quash the BFS appellants’ appeal. 

We do, however, have jurisdiction over this appeal to the extent that 

the First Compel Order requires production of privileged materials. Ben, 

____________________________________________

3 Viewed in context, “without objection” signifies the trial court’s intent to 

compel production of materials despite any assertion of privilege.
J-S16013-16, J-S16014-16

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729 A.2d at 551-53. The issue of whether materials are privileged is a 

question of law. Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1019 

(Pa.Super.2015). Our standard of review is de novo, and our scope of 

review is plenary. Id.

The BFS appellants claimed below, and claim again on appeal, that 

certain materials are protected under the attorney-client, work product and 

joint defense privileges. With regard to these materials, we reverse and 

remand for further proceedings in accordance with T.M. v. Elwyn, Inc., 950 

A.2d 1050 (Pa.Super.2008).

In T.M., Elwyn, the appellant, raised the attorney-client and work 

product privileges in response to the plaintiff’s discovery requests. Notably, 

Elwyn did not create a privilege log. Id. at 1063 (“we do not even have a 

situation where there is a privilege log”). The trial court issued a broadly 

worded discovery order which, Elwyn claimed, required it to produce 

privileged documents. Elwyn appealed to this Court, and we held that we 

had jurisdiction to review the order under Pa.R.A.P. 313. We observed that 

we could not decide whether either privilege applied due to the absence of a 

privilege log. But instead of finding that this omission resulted in waiver, we 

remanded with instructions for Elwyn to create a privilege log and for the 

trial court to rule on the discoverability of each document placed in the log 

and sought by the plaintiff. We reminded Elwyn that, “as the party invoking 

these privileges, it must initially set forth facts showing that the privilege 
J-S16013-16, J-S16014-16

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has been properly invoked” before the burden shifted to the party asking for 

disclosure “to set forth facts showing that disclosure will not violate the 

attorney-client privilege, e.g., because the privilege has been waived or 

because some exception applies.” Id. at 1063. We continued that if, “upon 

remand, Elwyn is able to identify certain materials encompassed in the

discovery request that are subject to the attorney-client privilege or work 

product doctrine, then the trial court will be able to assess whether those 

materials are discoverable.” Id. We directed that “the court may conduct in 

camera review of documents identified by Elwyn to be subject to a privilege, 

to better analyze the privilege issues, as needed.” Id.

In this case, the BFS appellants asserted the attorney-client, work 

product and joint defense privileges in response to Meyer-Chatfield’s 

discovery requests and motion to compel. Like the appellant in T.M., the 

BFS appellants did not create a privilege log itemizing the privileged 

materials. Because T.M. did not regard this omission as fatal, neither do 

we. Instead, pursuant to T.M., we reverse and remand for the following 

proceedings:

1. In accordance with a time schedule to be created by the trial court, 

the BFS appellants shall create a privilege log identifying all materials that 
J-S16013-16, J-S16014-16

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are protected by the (1) attorney-client privilege, (2) work product privilege 

and (3) joint defense privilege.4 

____________________________________________

4 We note that the BFS appellants waived all other privileges by failing to 

raise them in response to Meyer-Chatfield’s discovery requests or motion to 

compel. 

The BFS appellants purported to raise additional privileges (the accountantclient, psychologist-patient and marital privileges) in a motion for 

reconsideration filed after the First Compel Order. Raising an issue for the 

first time in a motion for reconsideration, however, does not rescue that 

issue from waiver. See Prince George Center, Inc. v. U.S. Gypsum Co., 

704 A.2d 141, 145 (Pa.Super.1997) (citing Pa.R.A.P. 302(a)) (declining to 

consider issues raised initially in motion for reconsideration).

In the same motion for reconsideration, the BFS appellants purported to 

assert a right of “privacy” in a multitude of materials. Our Supreme Court 

recently indicated in Dougherty v. Heller, -- A.3d --, 2016 WL 3261814 

(Pa., 6/14/16), that a party’s privacy objection could be significant enough 

to make a discovery order subject to collateral order review. Id., 2016 WL 

3261814, at *17. The Court cautioned, however:

[W]e cannot accept that any assertion of an attendant privacy 

concern should transform a discovery order that otherwise is not 

appealable by right into a collateral order subject to as-of-right 

interlocutory appellate review. Instead, we find that the specific 

privacy concern in issue must be evaluated and adjudged to 

satisfy the importance requirement. In this regard, we make the 

distinction among different orders of privacy interests, such as 

those of a constitutional magnitude or recognized as such by 

statute, as compared with lesser interests.

Id. (emphasis in original). 

Had the BFS appellants timely raised privacy objections in response to 

Meyer-Chatfield’s discovery requests or motion to compel, we would have 

examined whether they were of such broad public importance as to justify 

collateral order review. But because the BFS appellants did not raise privacy 

objections until their motion for reconsideration, we find these objections 

waived. Prince George Center, Inc., 704 A.2d at 145. 
J-S16013-16, J-S16014-16

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2. In accordance with the trial court’s time schedule, Meyer-Chatfield 

shall identify all materials in the privilege log that it desires to obtain.

3. As needed, the trial court may conduct in camera review of 

materials that the BFS appellants claim are subject to one or more of the 

foregoing privileges.

4. The trial court shall enter an order specifying the materials in the 

BFS appellants’ privilege log which are protected from disclosure.

5. Except for the materials that the trial court’s order protects from 

disclosure, and except for any time scheduling modifications made by the 

trial court on remand, the provisions of the First Compel Order shall remain 

in full force and effect. 

1896 EDA 2015. On May 21, 2015, the BFS appellants filed a motion 

in the trial court seeking reconsideration of the First Compel Order. On June 

11, 2015, more than thirty days after the First Compel Order, the trial court 

entered the Second Compel Order which modified the terms of the First 

Compel Order. On June 16, 2015, the BFS appellants appealed the Second 

Compel Order at 1896 EDA 2015.

Under Pa.R.A.P. 1701, the trial court lacked jurisdiction to enter the 

Second Compel Order. Rule 1701 prescribes in relevant part:

(b) After an appeal is taken ... the trial court ... may: ...

(3) Grant reconsideration of the order which is the subject of the 

appeal or petition, if:
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(i) an application for reconsideration of the order is filed in 

the trial court ... within the time provided or prescribed by 

law; and

(ii) an order expressly granting reconsideration of such 

prior order is filed in the trial court ... within the time 

prescribed by these rules for the filing of a notice of appeal 

... with respect to such order, or within any shorter time 

provided or prescribed by law for the granting of 

reconsideration.

A timely order granting reconsideration under this paragraph 

shall render inoperative any such notice of appeal ... theretofore 

or thereafter filed or docketed with respect to the prior order ... 

Where a timely order of reconsideration is entered under this 

paragraph, the time for filing a notice of appeal ... begins to run 

anew after the entry of the decision on reconsideration, whether 

or not that decision amounts to a reaffirmation of the prior 

determination of the trial court ...

Pa.R.A.P. 1701(b)(3). Under this rule, if an appeal is timely filed, a court 

may grant a party's motion for reconsideration, “but only if (1) a motion to 

reconsider is filed within the appeal period; and (2) the court expressly 

grants reconsideration within the appeal period.” Manufacturers and 

Traders Trust Co. v. Greenville Gastroenterology, SC, 108 A.3d 913, 

918 (Pa.Super.2015). “If a court fails to act on a timely reconsideration 

motion within the appeal period, it loses jurisdiction to do so.” Id.

We have held above that the First Compel Order entered on May 4, 

2015 was appealable to the extent it concerned certain privilege issues. The 

BFS appellants timely filed an appeal from the First Compel Order and timely 

filed a motion for reconsideration within the 30-day appeal period. The trial 

court, however, did not enter the Second Compel Order until June 11, 2015, 
J-S16013-16, J-S16014-16

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eight days after expiration of the appeal period. Thus, the trial court lacked 

jurisdiction to enter the Second Compel Order, rendering it void ab initio. 

Consequently, we quash the appeal at 1896 EDA 2015 for lack of 

jurisdiction.

We turn to the appeals of Schwartz and Byrd.

1578 EDA 2015. Although Meyer-Chatfield did not serve Schwartz or 

Byrd with discovery requests, it did serve counsel for Schwartz and Byrd 

with its motion to compel. Schwartz and Byrd did not answer the motion, 

and the trial court entered the First Compel Order against them. Schwartz 

and Byrd filed this timely appeal.

As we held in 1577 EDA 2015, we quash the appeal at 1578 EDA 2015 

to the extent that the First Compel Order requires production of nonprivileged materials. We have jurisdiction over the appeal at 1578 EDA 

2015 to the extent that the First Compel Order requires production of 

privileged materials. Ben, 729 A.2d at 551-53. 

Because Byrd and Schwartz failed to answer Meyer-Chatfield’s motion 

to compel, they waived any objection to the production of privileged 

materials. Pa.R.A.P. 302(a) (“issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal”). We reach this decision 

reluctantly, because it seems inequitable for Meyer-Chatfield to obtain an 

order compelling production from Byrd and Schwartz despite failing to serve 

them with discovery requests in the first place. Nevertheless, parties in civil 
J-S16013-16, J-S16014-16

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litigation have a duty to defend themselves against motions that name them 

as respondents, even when, as here, the motion appears groundless. Upon 

counsel’s receipt of Meyer-Chatfield’s motion to compel, Byrd and Schwartz 

had the duty to file a response. Their failure to take this step results in 

waiver. 

Therefore, we affirm to the extent the First Compel Order requires 

production of privileged materials.

2330 EDA 2015. On May 20, 2015, Byrd and Schwartz filed a motion 

in the trial court seeking reconsideration of the First Compel Order. On June 

11, 2015, more than thirty days after the First Compel Order, the trial court 

entered the Second Compel Order which modified the terms of the First 

Compel Order. On July 9, 2015, Byrd and Schwartz appealed the Second 

Compel Order at 2330 EDA 2015.

As we held in 1896 EDA 2015, under Pa.R.A.P. 1701, the trial court 

lacked jurisdiction to enter the Second Compel Order because it did not 

enter this order within 30 days of the First Compel Order. Consequently, we 

quash the appeal at 2330 EDA 2015 for lack of jurisdiction.

Appeal at 1576 EDA 2015 quashed. Appeal at 1577 EDA 2015 

quashed in part and reversed and remanded in part for proceedings 

consistent with this opinion, with jurisdiction relinquished. Appeal at 1896 

EDA 2015 quashed. Appeal at 1578 EDA 2015 quashed in part and affirmed 
J-S16013-16, J-S16014-16

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in part. Appeal at 2330 EDA 2015 quashed. Appellants’ application for 

emergency relief and Appellees’ motion to quash denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2016