J-S18032-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

NELSON RYDER

 Appellant

 v.

SCI - COAL TOWNSHIP

 Appellee

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1261 MDA 2015

Appeal from the Order Entered June 29, 2015

in the Court of Common Pleas of Northumberland County,

Civil Division, at No(s): CV-2014-02278

BEFORE: BOWES, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 16, 2016

Nelson Ryder (Ryder) appeals from the order entered on June 29, 

2015, which, inter alia, denied his motion for pre-complaint discovery. Upon 

review, we quash this appeal.1

On December 30, 2014, Ryder filed a praceipe for writ of summons 

and application to proceed in forma pauperis (IFP). The writ of summons 

 

1 Because Ryder has instituted this lawsuit against SCI - Coal Township, an 

entity of the Commonwealth, it is not clear that this Court, as opposed to the 

Commonwealth Court, has subject matter jurisdiction over this appeal. 

However, because the Department of Corrections has not objected to our 

jurisdiction, we may decide this appeal. See Pa.R.A.P. 741(a) (“The failure 

of an appellee to file an objection to the jurisdiction of an appellate court on 

or prior to the last day under these rules for the filing of the record shall, 

unless the appellate court shall otherwise order, operate to perfect the 

appellate jurisdiction of such appellate court, notwithstanding any provision 

of law vesting jurisdiction of such appeal in another appellate court.”). “It is 

the intention of this rule that where a case is appealed to the wrong 

appellate court, only the court may require transfer after the briefing 

schedule has commenced.” Id. (Note). 
J-S18032-16

- 2 -

was filed against SCI-Coal Township, as well as several corrections officers. 

Praecipe for Writ of Summons, 12/30/2014. On January 16, 2014, the trial 

court granted Ryder’s application to proceed IFP.2 On February 20, 2015, 

counsel for SCI-Coal Township filed a praecipe for a rule for Ryder to file a 

complaint. On June 29, 2015, the trial court entered the following order.

AND NOW, this 29th day of June 2015, the Court - having 

reviewed the Praecipe for a Rule to file a Complaint, the 

Plaintiff’s response, the Plaintiff’s request for pre-complaint 

discovery, and the legal memorandum submitted by Plaintiff -

hereby orders and directs as follows:

1. The Plaintiff’s Pre-Complaint discovery requests are 

overly broad and encompass material which is not necessary to 

the preparation of a complaint1.

1

 The Plaintiff seeks “any and all” facts and 

documents relating to his cause of action. 

Traditional requirements for pre-complaint discovery 

require the Court to balance the equity of having a 

well-pled complaint against the rights of the 

Defendants to have notice of the complaints against 

them. In this case, with such broad requests, the 

Plaintiff seeks discovery, NOT pre-complaint 

discovery.

2. The Plaintiff’s Motion for a Protective Order is DENIED. 

Plaintiff wishes a stay entered on the Defendant’s Praecipe for a 

Rule. He does not seek a protective order under the rule.

3. The Defendant’s Praecipe for a Rule to file a Complaint 

is GRANTED.

 

2 The trial court granted Ryder’s application to proceed IFP prematurely. See

Pa.R.C.P. 240(j)(2) (“If the petitioner commences the action by writ of 

summons, the court shall not act on the petition for leave to proceed in 

forma pauperis until the complaint is filed. If the complaint has not been 

filed within ninety days of the filing of the petition, the court may dismiss the 

action pursuant to subdivision (j)(1).”).
J-S18032-16

- 3 -

WHEREFORE, the Court further orders and directs as 

follows:

1. Plaintiff shall have thirty (30) days in which to file a 

complaint in the above-captioned matter.

2. Plaintiff maintains in forma pauperis status.

3. Plaintiff is advised of the nature and requirements of 

service of civil complaints pursuant to the Rules of Civil 

Procedure.

BY THE COURT:

/s/ Wm. Harvey Wiest, President Judge

Order, 6/29/2015.3

Ryder timely filed a notice of appeal from that order. Both Ryder and 

the trial court complied with Pa.R.A.P. 1925. Before we reach the issues on 

appeal, we consider whether we have jurisdiction over an appeal from this 

order.4 

An appeal may be taken only from a final order unless otherwise 

permitted by statute or rule. A final order is ordinarily one which 

ends the litigation or disposes of the entire case; however, “[a]n 

appeal may be taken as of right from a collateral order of an 

administrative agency or lower court.” Pa.R.A.P. 313(a). A 

collateral order is defined under Pa.R.A.P. 313(b) 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.”

 

3 Ryder’s pre-complaint discovery requests and motion for protective order 

are not included in the certified record. However, based on our disposition, 

this does not impede our review. 

4 On October 27, 2015, this Court issued a rule to show cause on Ryder as to 

why this appeal should not be quashed as interlocutory. On November 4, 

2015, Ryder filed a response arguing that this order is appealable as a

collateral order. Thus, the show cause order was discharged and the matter 

referred to this panel.
J-S18032-16

- 4 -

Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999).

Ryder suggests that the trial court order is appealable as a collateral 

order pursuant to Pa.R.A.P 313. “Whether an order is appealable as a 

collateral order is a question of law; as such, our standard of review is de 

novo and our scope of review is plenary.” Yorty v. PJM Interconnection, 

L.L.C., 79 A.3d 655, 660 (Pa. Super. 2013) (quotations omitted). 

Despite Ryder’s arguments to the contrary, it is clear that this order 

does not satisfy any of the three aforementioned requirements. “A plaintiff 

may obtain pre-complaint discovery where the information sought is 

material and necessary to the filing of the complaint and the discovery will 

not cause unreasonable annoyance, embarrassment, oppression, burden or 

expense to any person or party.” Pa.R.C.P. 4003.8(a). Thus, by its own 

definition, the material sought through pre-complaint discovery must be a 

core aspect of preparing the complaint and therefore is unlikely to be 

“separate and distinct from the underlying cause of action.” Berkeyheiser 

v. A-Plus Investigations, Inc., 936 A.2d 1117, 1123 (Pa. Super. 2007). 

Furthermore, we would be hard pressed to see how permitting review of this 

order at this point would involve a right “deeply rooted in public policy going 

beyond the particular litigation at hand.” Id. Finally, even if Ryder somehow 

satisfied the first two prongs, he cannot satisfy the third prong, as review of 

the denial of pre-complaint discovery will not be irreparably lost.
J-S18032-16

- 5 -

In McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006), our Supreme Court 

considered this issue. That case involved a will contest wherein one son, 

Henry, instituted an action against his sister and her husband (the Jordans) 

for intentional interference with testamentary expectancy. Henry filed a writ 

of summons against the Jordans, followed by a complaint. The Jordans filed 

preliminary objections in the nature of demurrer, which was granted and 

Henry was given 30 days to file an amended complaint. Henry sought 

discovery to aid in preparation of his amended complaint, and filed a formal 

motion for pre-complaint discovery. That motion was denied by the trial 

court, and Henry was provided 30 days to file an amended complaint. 

Thereafter, Henry advised the trial court that he would not amend his 

complaint without access to the pre-complaint discovery, and the trial court 

dismissed Henry’s action with prejudice. 

Henry filed an appeal to this Court arguing that the trial court erred in 

denying his request for pre-complaint discovery necessary to file a legallysufficient complaint. This Court affirmed, holding that Henry’s failure to set 

forth a prima facie case to support his cause of action was fatal to his 

request for pre-complaint discovery. Our Supreme Court granted allocatur 

to consider the issue. The Jordans argued that Henry did not preserve the 

issues related to the denial of pre-complaint discovery. Our Supreme Court 

set forth the following.

It has been unremittingly obvious to both parties, the trial court, 

the Superior Court, and now this Court that Henry[’s] desire to 
J-S18032-16

- 6 -

take pre-complaint discovery has been the crucial issue in this 

case. The dismissal with prejudice of Henry[’s] complaint was a 

final order fairly encompassing the trial court’s denial of pre-trial 

discovery, and preserving that issue for review before both the 

Superior Court and this Court.

McNeil, 894 A.2d at 1267. Our Supreme Court pointed out that this is 

consistent with the policy that “a notice of appeal filed from the entry of 

judgment will be viewed as drawing into question any prior non-final orders 

that produced the judgment.” Id. at 1266 (quotations and emphasis 

omitted). 

Based on the foregoing, it is clear that if Ryder’s complaint is 

dismissed with prejudice as legally insufficient, he may appeal from that final 

order. Ryder can then argue that the reason he was unable to prepare a 

legally-sufficient complaint was due to the denial of pre-complaint discovery. 

Thus, it is evident that Ryder’s issues regarding pre-complaint discovery will 

not be irreparably lost “if review is postponed until final judgment in the 

case[.]” Ben, 729 A.2d at 550.

Based on the foregoing, we conclude that the order from which Ryder 

appeals is not a collateral order, and we lack jurisdiction to review it.

Appeal quashed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016