J-A01038-17

2017 PA Super 111

*Retired Senior Judge assigned to the Superior Court.

PHILIP A. IGNELZI, INDIVIDUALLY, 

PHILIP A. IGNELZI AND MARIANNE 

IGNELZI, HUSBAND AND WIFE

 v.

OGG, CORDES, MURPHY AND IGNELZI, 

LLP; GARY J. OGG; SAMUEL J. 

CORDES; MICHAEL A. MURPHY, 

INDIVIDUALLY; MICHAEL A. MURPHY 

AND REBECCA MURPHY, HUSBAND 

AND WIFE; OGG, MURPHY, AND 

PERKOSKY, LLP; JOHN D. PERKOSKY; 

AND ESQUIRE REALTY ASSOCIATES

APPEAL OF: GARY J. OGG, MICHAEL A. 

MURPHY AND REBECCA MURPHY, OGG, 

MURPHY AND PERKOSKY, LLP, AND 

JOHN D. PERKOSKY

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 No. 971 WDA 2016

Appeal from the Order Entered May 20, 2016,

in the Court of Common Pleas of Allegheny County,

Civil Division at No(s): GD 11-022449

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED APRIL 19, 2017

Gary J. Ogg, Michael A. Murphy, Rebecca Murphy, John D. Perkosky, 

and Ogg, Murphy, and Perkosky, LLP (OMP) (collectively, Appellants) appeal 

from the discovery order entered May 20, 2016, which granted in part and 

denied in part their motion for protective order.1 After review, we quash this 

appeal.

 

1 After recusal of the entire bench of the Allegheny County Court of Common 

Pleas, Senior Judge Eugene E. Fike, II, was appointed to hear this case.
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This litigation arises from a dispute among Phillip A. Ignelzi, his former 

law firm, Ogg, Cordes, Murphy, and Ignelzi, LLP (OCMI), and partners, Ogg, 

Cordes, and Michael Murphy. In November of 2009, Ignelzi was elected as a 

judge of the Court of Common Pleas of Allegheny County. Accordingly, he 

could no longer be a partner of OCMI and the law firm began dissolution. 

Ogg, Murphy, and an associate, Perkosky, formed a new law firm, 

OMP. Cordes formed his own, separate law firm. The parties attempted to 

negotiate a settlement as to what the former partners would pay Ignelzi, but 

they were unable to reach an amicable resolution. Thus, on October 31, 

2011, Ignelzi filed the instant lawsuit alleging, inter alia, breach of contract 

and violations of the Uniform Partnership Act (UPA), 15 Pa.C.S. §§ 8301-

8365.2

As this Court pointed out previously, “[t]he heart of the parties’ 

dispute in this case is Ignelzi’s demand for his partnership share of any 

contingent fee cases that conclude after the dissolution of OCMI.” Ignelzi v. 

Ogg, Cordes, Murphy and Ignelzi, LLP, 78 A.3d 1111, 1114 (Pa. Super. 

2013) (Ignelzi I).3 Ignelzi sought discovery and requested the following, in 

relevant part.

 

2 This version of the UPA was repealed, effective February 21, 2017, and 

replaced by 15 Pa.C.S. §§ 8411-8486.

3 This Court first considered this case after the trial court granted Ignelzi’s 

March 29, 2012 petition filed pursuant to section 8332 of the UPA for access 

to accounting information from both OCMI and OMP. This Court held that 

“the trial court erred in entering [an] order [permitting access to ledgers, 
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1. Client lists for all claims or cases that the partnership of 

[OCMI], or any of its partners, had accepted, or had begun to 

review for acceptance, as of December 31, 2009.

2. Ledgers, books, records and client cards for any claims 

or cases that the partnership of [OCMI] or any of its partners, 

had accepted or begun to review for acceptance, as of December 

31, 2009.

3. Bookkeepers’ summaries for 2006 through 2009.

Ignelzi’s Brief at Exhibit A (Plaintiffs’ First Request for Production of 

Documents at 6-7).4 

In response to the discovery request, Appellants filed a motion for 

protective order. In that motion, Appellants argued that based upon this 

Court’s prior rulings, Ignelzi was not entitled to the aforementioned 

information. Specifically, they argued that this Court’s “December 2014 

[order] essentially sets up a date-certain valuation being the date [Ignelzi] 

 

books, records, and client cards for cases accepted by OCMI or any partners 

prior to December 31, 2009,] prior to litigation of the underlying facts 

resolving the parameters of the pre-existing partnership agreement or 

course of conduct between OCMI and prior departing law partners.” Ignelzi 

I, 78 A.3d at 1115. 

After that appeal, the trial court concluded that the partners did not 

have an express agreement about how shares for contingent fee cases were 

to be distributed in the event a partner left the firm. Thus, the trial court 

limited Ignelzi’s claims accordingly, and Ignelzi’s claim for a share of these 

cases was limited to his action under the UPA. See Order, 12/23/2014. 

4

It does not appear that the First Request for Production of Documents is 

contained in the certified record on appeal. “Our law is unequivocal that the 

responsibility rests upon the appellant to ensure that the record certified on 

appeal is complete in the sense that it contains all of the materials necessary 

for the reviewing court to perform its duty.” Commonwealth v. Preston, 

904 A.2d 1, 7 (Pa. Super. 2006).
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left OCMI.” Motion for Protective Order, 9/1/2015, at ¶ 18. Appellants went 

on to argue that based on prior holdings of this Court, 

the value of work performed by Judge Ignelzi had no 

ascertainable value as of that date and discovery related to such 

matters is not warranted as it is overly broad, unduly 

burdensome, not likely to lead to discoverable material, violated 

the law of the case and would compel OMP to violate the Rules of 

Ethics. Further given the confidential client information at risk, 

[Appellants] simply cannot turn over all files as [Ignelzi’s] 

pending discovery requests demand.

 

Id. at ¶ 20.5

After argument, the trial court issued a ruling which granted in part 

and denied in part Appellants’ motion for protective order. The order 

provided:

It is ORDERED that the motion[ is] granted in part and 

denied in part as follows:

1. The motion[ is] denied to the extent that, to the extent not 

provided previously, Ogg, Murphy and Cordes shall produce to [] 

Ignelzi, the documents identified in paragraphs [1 and 3], within 

30 days after the date this order is entered.

2. Having concluded that, because of the breadth and allencompassing nature of the request contained in paragraph 2 [], 

the motion[ is] granted with respect to the documents requested 

in paragraph 2 [].

3. To ensure confidentiality, Ignelzi shall redact the documents 

to be produced pursuant to this order before being shared with 

 

5 We are compelled to point out that our review of Ignelzi I does not reveal 

any language by this Court that supports Appellants’ interpretation of that 

opinion. In fact, the opinion goes out of its way to acknowledge that 

“[l]awyers in private practice routinely become judges and payment of 

compensation commonly remains outstanding after the former lawyer takes 

the bench.” Ignelzi I, 78 A.3d at 1117. This Court went on to cite an Ethics 

Opinion discussing how such a matter should be handled. 
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counsel. Ignelzi shall assign a number to each client and 

substitute the number in place of the client’s name, with the 

number to be used in place of the client’s name in further 

proceedings. All documents and information produced or 

disclosed shall remain confidential, shall be used only as 

necessary in this litigation, will not be filed of record without 

prior court approval, and will be disclosed only to Ignelzi, 

Cordes, Murphy and their counsel, and to no other person 

without prior court approval.

4. The court is of the opinion that this order involves a 

controlling question of law as to which there is a substantial 

ground for difference of opinion and that an immediate appeal 

from this order will materially advance the ultimate termination 

of the matter.

Order, 5/20/2016 (unnecessary capitalization omitted). Moreover, the trial 

court pointed out that with respect to the information in paragraph 2 of the 

discovery request, it is denied “without prejudice to future discovery that 

appropriately narrows the inquiry to coincide with the parameters of 

permissible discovery.” Trial Court Opinion, 5/20/2016, at 15.

On June 22, 2016, Appellants filed a notice of appeal.6 Before we 

reach the substantive issues in this appeal, we consider the appealability of 

 

6 Appellants’ appeal was due to be filed in 30 days from the entry of the 

order, or no later than June 20, 2016. See Pa.R.A.P. 903(a). Therefore, this 

appeal, filed on June 22, 2016, appears to be untimely. However, 

Rule of Appellate Procedure 108(b) designates the date of entry 

of an order as “the day on which the clerk makes the notation in 

the docket that notice of entry of the order has been given as 

required by Pa.R.C.P. 236(b).” Pa.R.A.P. 108(b) (emphasis 

added). Our Supreme Court has held that “an order is not 

appealable until it is entered on the docket with the required 

notation that appropriate notice has been given.” Frazier 

v. City of Philadelphia, [] 735 A.2d 113, 115 ([Pa.] 1999) 

(emphasis added). Where there is no indication on the docket 
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the May 20, 2016 order. See In re Miscin, 885 A.2d 558, 561 (Pa. Super. 

2005) (“We may examine the issue of appealability sua sponte because it 

affects the Court’s jurisdiction over the case.”).

7

This Court has jurisdiction over final orders. The definition of a final 

order is provided in Rule 341 of the Pennsylvania Rules of Appellate 

Procedure. “Rule 341 is fundamental to the exercise of jurisdiction by this 

court.” Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en 

banc). Rule 341 provides, in relevant part, as follows.

(b) Definition of final order.--A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to paragraph (c) 

of this rule.

 

that Rule 236(b) notice has been given, then the appeal period 

has not started to run. Id. [] at 115. Our Supreme Court has 

expressly held that this is a bright-line rule, to be interpreted 

strictly. That the appealing party did indeed receive notice does 

not alter the rule that the 30–day appeal period is not triggered 

until the clerk makes a notation on the docket that notice of 

entry of the order has been given.

In re L.M., 923 A.2d 505, 508–09 (Pa. Super. 2007) (emphasis in original). 

Here, there is no notation on the docket that the Rule 236(b) notice was 

ever given. Accordingly, the appeal period never started to run, and 

therefore this appeal was not filed untimely. See also Vertical Res., Inc. v. 

Bramlett, 837 A.2d 1193, 1199 (Pa. Super. 2003) (holding that even where 

Rule 236(b) notice was never sent, “in the interest of judicial economy, we 

will regard as done what should have been done and consider the notice as 

having been mailed”). 

7 Moreover, Ignelzi has raised the issue of the appealability of this order. 
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(c) Determination of finality.--When more than one claim 

for relief is presented in an action, whether as a claim, 

counterclaim, cross-claim, or third-party claim or when multiple 

parties are involved, the trial court or other government unit 

may enter a final order as to one or more but fewer than all of 

the claims and parties only upon an express determination that 

an immediate appeal would facilitate resolution of the entire 

case. Such an order becomes appealable when entered. In the 

absence of such a determination and entry of a final order, any 

order or other form of decision that adjudicates fewer than all 

the claims and parties shall not constitute a final order.

Pa.R.A.P. 341. See also 42 Pa.C.S. § 742 (“The Superior Court shall have 

exclusive appellate jurisdiction of all appeals from final orders of the courts 

of common pleas....”). 

Instantly, the trial court added language in paragraph 4 of its order 

that is consistent with Pa.R.A.P. 341(c). However, this Court has held that 

“Rule 341(c) certification, under the clear language of the rule, is available 

only to ‘final’ orders disposing of one but fewer than all parties or causes of 

action.” F.D.P. v. Ferrara, 804 A.2d 1221, 1226 (Pa. Super. 2002). 

“[C]ertification under Rule 341(c) was designed to allow for an immediate 

appeal of a ‘final’ order relating to [fewer] than all parties or [fewer] than all 

claims. In other words, it applies to orders dismissing parties and dismissing 

claims.” Id. at 1226-27.

The discovery order in this case, which merely granted in part and 

denied in part Appellants’ motion for a protective order, dismissed neither a 

party nor a claim. Accordingly, despite the trial court’s Rule 341(c) 

certification, this order is not appealable under the clear language of the 
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rule. Thus, we do not have jurisdiction to entertain this appeal pursuant to 

Pa.R.A.P. 341.

We now consider other potential bases for this Court’s jurisdiction.8 

First, we examine our jurisdiction pursuant to Pa.R.A.P. 313, which governs 

collateral orders. In doing so, we point out that “This Court’s review ... is 

plenary, since determining the appropriate boundaries of collateral order 

jurisdiction entails resolution of a question of law.” Pridgen v. Parker 

Hannifin Corp., 588 Pa. 405, 419 (2006). 

“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.

Meyer-Chatfield Corp. v. Bank Fin. Servs. Grp., 143 A.3d 930, 936 (Pa. 

Super. 2016) (some citations omitted). “[W]here an order satisfies Rule 

313’s three-pronged test, we may exercise appellate jurisdiction where the 

order is not final. If the test is not met, however, and in the absence of 

another exception to the final order rule, we have no jurisdiction to consider 

 

8 See Appellants’ Brief at 1 (citing Pa.R.A.P. 313 (collateral orders) and 

Pa.R.A.P. 1311 (interlocutory appeals by permission)).
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an appeal of such an order.” Rae v. Pennsylvania Funeral Directors 

Ass’n, 977 A.2d 1121, 1125 (Pa. 2009). 

“Generally, discovery orders are deemed interlocutory and not 

immediately appealable, because they do not dispose of the litigation. 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.” Meyer-Chatfield, 143 A.3d at 

936 (emphasis added).

As to separability, [the Supreme] Court has adopted a 

practical analysis recognizing that some potential 

interrelationship between merits issues and the question sought 

to be raised in the interlocutory appeal is tolerable. [] [See] 

Johnson v. Jones, 515 U.S. [304,] 314 [(1995)] [] (explaining 

that a claim is sufficiently separate from the underlying issues 

for purposes of collateral order review if it “is conceptually 

distinct from the merits of plaintiff’s claim,” that is, where, even 

if “practically intertwined with the merits, [it] nonetheless raises 

a question that is significantly different from the questions 

underlying plaintiff’s claim on the merits” (citations omitted)).

Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006). We 

have held that “[a]n order is not separable if the matter being reviewed has 

the potential to resolve an issue in the case.” Jacksonian v. Temple Univ. 

Health Sys. Found., 862 A.2d 1275, 1279 (Pa. Super. 2004).

Instantly, Appellants argue that “the dispositive question [in this 

appeal] is whether the contents of confidential, privileged legal files in which 

the clients of [OMP] and or [Cordes] have a proprietary interest should be 

disclosed, without their consent or even notice.” Appellants’ Reply Brief at 3 
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(emphasis removed). According to Appellants, “if the [o]rder is not

reversed, [Ignelzi] will receive unfettered access to files of hundreds of 

[Appellants’] clients, the overwhelming majority of whom [Ignelzi] has never 

had any involvement.”9Id. at 4. 

In other words, Appellants disagree with what they see as the 

underlying premise of the trial court’s order, that Ignelzi may eventually be 

entitled to a recovery on contingent fee cases that were not resolved prior to 

Ignelzi’s departure. In fact, Appellants devote the majority of their brief on 

appeal to arguing why Ignelzi is not entitled to a recovery in this case, not 

arguing why Ignelzi should not be entitled to review portions of confidential 

client files. 

Appellants argue that “an interest in a contingent matter must [be] 

calculated on a specific date.” Appellants’ Brief at 19. Appellants suggest 

that based on this interpretation of the law, if a contingent fee matter had 

not been resolved prior to Ignelzi’s departure in December 2009, its value to 

him was zero and has no effect on a partnership valuation. Additionally, 

Appellants argue that as a matter of public policy, a partner of a law firm 

who becomes a judge should not be entitled to collect a partnership interest 

 

9

It should be noted that Appellants have not even been ordered to turn over 

these files. See Trial Court Opinion, 5/20/2016, at 15. However, the trial 

court left the door open to Appellants turning over at least some portions of

these files if Ignelzi “appropriately narrows the inquiry.” Id.
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from contingent matters that were not resolved prior to his departure. Id. at 

40-46.

Our conclusion with respect to any or all of the aforementioned issues 

has the potential to resolve the primary issue in the case, whether Ignelzi is 

entitled to “his partnership share of any contingent fee cases that conclude 

after the dissolution of OCMI.” See Ignelzi I, 78 A.3d at 1114. If we were 

to determine that the contingency fee cases that were not resolved had no 

value in December of 2009, then Ignelzi would not be entitled to any money 

and the case would end. In addition, if we were to determine that a sitting 

judge is not entitled to collect money from his or her former law firm, again, 

Appellants could not be ordered to pay Ignelzi any amount, and the case 

would end. Because Appellants are trying to litigate these issues through an 

appeal from a discovery order, we hold that this order does not satisfy the 

separability prong of the collateral order doctrine and we lack jurisdiction to 

entertain this appeal.10

 

10

 Appellants assert several additional bases for why Ignelzi is not entitled 

to this information, and eventually a recovery in this matter. Appellants’ 

Brief at 23-39. First, Appellants invoke several Rules of Professional 

Conduct: Pa.R.P.C. 5.4 (regarding sharing fees with a nonlawyer), 1.5 

(regarding lawyers dividing fees with other lawyers), and 1.6 (regarding 

confidentiality). However, “the Supreme Court has held that the Rules of 

Professional Conduct do not have the effect of substantive law but, instead, 

are to be employed in disciplinary proceedings.” In re Adoption of M.M.H., 

981 A.2d 261, 272 (Pa. Super. 2009). “They do not govern or affect judicial 

application of either the attorney-client or work product privilege.” In re 

Estate of Wood, 818 A.2d 568, 573 (Pa. Super. 2003).
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Even if we were to conclude that this order is separable, this matter 

would still not be ripe for our review. In T.M. v. Elwyn, 950 A.2d 1050 (Pa. 

Super. 2008), this Court set forth the requirements for a party asserting the 

attorney-client privilege as a basis to withhold discovery. In that case, the 

plaintiff was a student at a school for students with mental health and 

behavioral issues. The plaintiff filed a lawsuit against the school, asserting 

that a school counselor sexually assaulted her. The plaintiff filed requests 

for admissions and production of documents for information about other 

students who had sued the school. The school objected on the basis that 

the information and documents requested were privileged. After motions 

practice, the trial court ordered that the school must fully answer, without 

objection, the plaintiff’s requests. The school filed a notice of appeal. 

On appeal, the school argued that production of this information is “in 

contravention of evidentiary privileges, including the attorney-client 

privilege, and in violation of various statutes.” Id. at 1058. The plaintiff 

 

In addition, Appellants reference Code of Judicial Conduct: 5(C) 

(Financial Activities), 5(D) (Fiduciary Activities), and 5(F) (Practice of Law). 

Appellants’ Brief at 23-24. We note that Pennsylvania has only Canons 1 

through 4. It appears that Appellants are referring to Canons 3.11 (Financial 

Activities), 3.8 (Fiduciary Activities), and 3.10 (Practice of Law), 

respectively. In any event, the Code of Judicial Conduct “is not designed or 

intended as a basis for civil or criminal liability. Neither is it intended to be 

the basis for litigants to seek collateral remedies against each other or to 

obtain tactical advantages in proceedings before a court.” Pa. Code of 

Judicial Conduct, Preamble ¶ 7. Based on the foregoing, we fail to see how 

either set of rules governs our resolution in this matter.
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responded that production of this information would not violate such 

privileges.

In evaluating whether there was a potential attorney-client privilege 

violation, this Court held that “it is impossible for this Court to determine 

whether any privilege applies when [the school] has failed to identify or 

describe any such documents that may be protected.” Id. at 1062. This 

Court went on to state the following.

In the instant case, we do not ... have a situation where 

there is a privilege log, let alone any indication or analysis on the 

part of the trial court with regard to documents that [the school] 

deemed protected by the attorney-client privilege and work 

product doctrine. We remind [the school] that, as the party 

invoking these privileges, it must initially “set forth facts showing 

that the privilege has been properly invoked; then the burden 

shifts to the party seeking 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.” Nationwide Mut. Ins. Co. v. Fleming, 924 

A.2d 1259, 1266 (Pa. Super. 2007) (citations omitted). 

Accordingly, “[i]f the party asserting the privilege does not 

produce sufficient facts to show that the privilege was properly 

invoked, then the burden never shifts to the other party, and the 

communication is not protected under attorney-client privilege.” 

Id. at 1267. If, upon remand, [the school] 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. We therefore remand, noting that the 

court may conduct in camera review of documents identified by 

[the school] to be subject to a privilege, to better analyze the 

privilege issues, as needed.

T.M. v. Elwyn, Inc., 950 A.2d 1050, 1063 (Pa. Super. 2008). See also

Gocial v. Independence Blue Cross, 827 A.2d 1216, 1223 (Pa. Super. 

2003) (holding that where there is a privilege log, it is the trial court’s 
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responsibility to “rule on the relevance of each item ... or explain why the 

privileges raised were inapplicable”).

Applying this law to the instant case, it was Appellants’ burden to 

assert facts establishing the applicability of attorney-client privilege. In 

addition, where the requests encompass more than one document, it was up 

to Appellants to create a privilege log to permit the trial court to rule on 

discoverability in the first instance. Appellants have not asserted any such 

facts in meeting their burden, nor have they produced a privilege log. 

Accordingly, we hold that Appellants have not met the jurisdictional 

requirements for reviewability under the collateral order doctrine.

Having established Appellants present no issues on appeal reviewable 

under the collateral order doctrine, we quash this appeal.11

Appeal quashed.

 

11 We recognize that Appellants also filed a petition for permission to appeal 

pursuant to Pa.R.A.P. 1311, which was docketed in this Court at 69 WDM 

2016. On August 10, 2016, this Court, in a per curiam order, dismissed the 

petition as moot. However, even if we had considered whether Appellants 

should have been granted permission to appeal from the order, we would 

have denied it for the same reasons outlined supra. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/19/2017