J-A21017-19
2020 PA Super 64
JOSHUA KEESEE AND MCON : IN THE SUPERIOR COURT OF
ELECTRIC, LLC : PENNSYLVANIA
:
:
v. :
:
:
JOHN J. DOUGHERTY (INDIVIDUALLY :
AND IN HIS CAPACITY AS BUSINESS : No. 1670 EDA 2018
MANAGER OF INTERNATIONAL :
BROTHERHOOD OF ELECTRICAL :
WORKERS LOCAL UNION 98) AND :
INTERNATIONAL BROTHERHOOD OF :
ELECTRICAL WORKERS LOCAL :
UNION 98 AND CHRISTOPHER :
OWENS AND THOMAS RODRIGUEZ :
AND NIKO RODRIGUEZ :
:
Appellants :
Appeal from the Order Entered May 15, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170801229
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
OPINION BY OLSON, J.: Filed: March 16, 2020
Appellants, John J. Dougherty, individually and in his capacity as
business manager of the International Brotherhood of Electrical Workers Local
Union 98 (“Dougherty”), International Brotherhood of Electrical Workers Local
Union 98 (“IBEW 98”), Christopher Owens (“Owens”), Thomas Rodriguez, and
Niko Rodriquez appeal from the order entered May 15, 2018, denying
Appellants’ motion to stay the civil action filed against them by Joshua Keesee1
____________________________________________
1 We note that Joshua Keesee’s last name was misspelled on the Notice of
Appeal. The case caption has been corrected to reflect the accurate spelling
of Joshua Keesee’s last name.
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(“Keesee”) and MCON Electric, LLC (“MCON”). We vacate the order and
remand the case.
The trial court summarized the factual and procedural history as follows:
[Keesee and MCON] filed the complaint in this action on August
16, 2017. The amended complaint advances causes of action for
battery, intentional interference with contractual relations,
concerted tortious action, and civil conspiracy. A summary of its
pertinent allegations follows.
[Keesee] is the owner and president of [MCON], a company in the
business of supplying electrical contractor work. [Dougherty] is
the business manager of [] IBEW 98, the electrical labor union
maintaining its business in Philadelphia. [] Owens, Thomas
Rodriguez and Niko Rodriguez are IBEW 98 union members.
In 2013, real-estate developer, Barry Sable, entered into an
unwritten contract with Keesee [and] MCON to provide electrical
work on a townhome project in Philadelphia. He selected MCON
because it is a non-union contractor.
[Dougherty, Owens, Thomas Rodriguez, and Niko Rodriguez], on
behalf of IBEW 98, embarked on an unsuccessful campaign of
intimidation and coercion to persuade [Keesee and MCON] to join
the union. On January 21, 2016, [Dougherty, Owens, Thomas
Rodriguez, and Niko Rodriguez] physically attacked Keesee,
causing him to suffer a broken nose, concussion, and various
injuries requiring medical care. [Dougherty, Owens, Thomas
Rodriguez, and Niko Rodriguez’s] harassing behavior[s] continued
in the following days until January 23, 2016, when developer
Sable severed his relationship with [Keesee and MCON] and
retained a union contractor to finish the work.
[Keesee and MCON’s] claims in this civil action sound in tort and
contract. They seek punitive and other damages stemming from
Keesee's injuries on January 21, 2016, the subsequent loss of his
reputation and income, and the value of the contract terminated
by developer Sable.
The [trial] court overruled [Appellants’] preliminary objections on
November 30, 2017, ordering [Appellants] to answer [Keesee and
MCON’s] amended complaint.
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On April 13, 2018, a little over four months later and in the wake
of news reports that [] Dougherty was the subject of federal and
state criminal investigations, [Appellants] filed a [m]otion to
[s]tay [p]roceedings on the grounds that active litigation of
[Keesee and MCON’s] civil action imperils [Dougherty, Owens,
Thomas Rodriguez, and Niko Rodriguez’s] privileges against
self-incrimination, a protection secured by the [United States and
Pennsylvania C]onstitutions.
The [trial] court denied the [m]otion to [s]tay[] and denied
[Appellants’] motion for reconsideration.
Trial Court Opinion, 4/9/19, at 2-3 (citations to record omitted). This appeal
followed.2
On August 2, 2018, this Court ordered Appellants to show cause why
the order denying the motion to stay was not an interlocutory order and,
instead, was immediately appealable. Per Curiam Order, 8/2/18. Appellants
filed a response, and this Court subsequently discharged the rule to show
cause order, referring the issue to the merits panel.
Appellants raise the following issue for our review:
Did the [t]rial [c]ourt abuse its discretion, or commit an error of
law, in denying [Appellants’] [m]otion to [s]tay pending parallel
criminal proceedings[3], and thereby denying [Dougherty, Owens,
Thomas Rodriguez, and Niko Rodriguez’s] rights against
self-incrimination under the United States and Pennsylvania
Constitutions, where all six factors of the relevant balancing test
____________________________________________
2 Appellants filed a timely notice of appeal.
The trial court ordered Appellants
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellants timely complied. The trial court subsequently
filed its Rule 1925(a) opinion.
3 We note the pending criminal proceedings can be found at United States
of Am. v. John Dougherty, et al., No. 2:19-cr-00064-JLS (E.D. Pa. January
29, 2019). “This [C]ourt can take judicial notice of court filings to the extent
that a party has taken advantage of the judicial process.” See Spanier v.
Freeh, 95 A.3d 342, 348 n.3 (Pa. Super. 2014).
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establish that a stay is required in order to protect [Dougherty,
Owens, Thomas Rodriguez, and Niko Rodriguez’s] [c]onstitutional
rights?
Appellants’ Brief at 2.
Before addressing the merit of Appellants’ issue, we must first examine
whether we have jurisdiction in this matter. An order denying a motion to
stay generally is considered interlocutory and not appealable unless it satisfies
the collateral order doctrine. Spanier v. Freeh, 95 A.3d 342, 345 (Pa. Super.
2014). Our Supreme Court held,
Pennsylvania Rule of Appellate Procedure 313(b) permits a party
to take an immediate appeal as of right from an otherwise
unappealable interlocutory order if the order meets three
requirements: (1) the order must be separable from, and
collateral to, the main cause of action; (2) the right involved must
be too important to be denied review; and (3) the question
presented must be such that if review is postponed until after final
judgment, the claim will be irreparably lost. All three prongs of
Rule 313(b) must be met before an order may be subject to a
collateral appeal; otherwise, the appellate court lacks jurisdiction
over the appeal.
Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011); see also Pa.R.A.P.
313(b) (defining 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”).
With regard to the first prong of the collateral order doctrine, an
order is separable from the main cause of action if it is entirely
distinct from the underlying issue in the case and if it can be
resolved without an analysis of the merits of the underlying
dispute. With regard to the second prong, a right is important if
the interests that would go unprotected without immediate appeal
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are significant relative to the efficiency interests served by the
final order rule. Notably, the rights must be deeply rooted in
public policy going beyond the particular litigation at hand. With
regard to the third prong, a right sought to be asserted on appeal
will be “irreparably lost” if, as a practical matter, forcing the
putative appellant to wait until final judgment before obtaining
appellate review will deprive the appellant of a meaningful
remedy.
Commonwealth v. Magee, 177 A.3d 315, 319-320 (Pa. Super. 2017)
(citations, ellipsis, and some quotation marks omitted).
Here, Appellants’ issue concerning the denial of their motion to stay the
civil proceedings (centered upon preservation of Appellants’ constitutional
privilege against self-incrimination) can be decided without reaching the
merits of Keesee and MCON’s underlying causes of action. Therefore, the first
prong of the collateral order doctrine has been satisfied.
Turning next to an analysis of the second prong of the collateral order
doctrine, “courts in this Commonwealth have continually recognized that the
Fifth Amendment right against self-incrimination is the type of privilege that
is deeply rooted in public policy and ‘too important to be denied review.’”
Commonwealth v. Davis, 176 A.3d 869, 874 (Pa. Super. 2017) (citation
omitted), appeal granted on other grounds,
195 A.3d 557 (Pa. 2018); see
also Commonwealth v. Davis,
220 A.3d 534, 542 (Pa. 2019) (holding, the
right against self-incrimination “not only applies to a defendant in a criminal
trial, but “in any other proceeding, civil or criminal, formal or informal, where
the answers might incriminate [the speaker] in future criminal proceedings”
(citation omitted)). Appellants assert the denial of their motion to stay
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“effectively destroy[ed Dougherty, Owens, Thomas Rodriguez, and Niko
Rodriguez’s] constitutional rights against self-incrimination. Appellants’ Brief
at 11; see also Appellants’ Statement of Appellate Jurisdiction, 8/13/18, at
7. Therefore, the second prong of the collateral order doctrine has been
satisfied.
Finally, we agree that Appellants’ rights against self-incrimination would
be “irrevocably lost” if our review were postponed until after final judgment.
Without immediate review, Appellants would either forgo testifying on their
own behalf in the civil action or risk providing answers that might incriminate
them in the pending criminal proceedings.
Having found Appellants satisfied all three prongs of the collateral order
doctrine, this Court has jurisdiction over this appeal, and we now address the
merit of Appellants’ claim.
The decision to grant or deny a motion to stay is within the sound
discretion of the trial court, and we will review that decision for abuse of
discretion. See generally In re Upset Sale, Tax Claim Bureau of Berks
County, 479 A.2d 940, 946 (Pa. 1984). “An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill will, as shown by the evidence or the
record, discretion is abused.” Cigna Corp. v. Executive Risk Indem., Inc.,
111 A.3d 204, 211 (Pa. Super. 2015), appeal denied,
126 A.3d 1281 (Pa.
2015).
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Determining the appropriate balancing test or factors the trial court
should consider when deciding whether to grant or deny a motion to stay a
civil case pending the resolution of a related criminal case appears to be an
issue of first impression for this Court. We are guided by this Court’s
acknowledgment in Spanier, supra of the six-factor balancing test set forth
in In re Adelphia Communications Sec. Litig., No. 02-1781,
2003 WL
22358819 (E.D. Pa. May 13, 2003), although we find no adoption of this
specific balancing test by our Supreme Court. See Spanier,
95 A.3d at 345.
In Adelphia, the United States District Court for the Eastern District of
Pennsylvania held,
In deciding whether to stay a civil case pending the resolution of
a related criminal case, courts consider many factors, including:
(1) the extent to which the issues in the civil and criminal cases
overlap; (2) the status of the criminal proceedings, including
whether any defendants have been indicted; (3) the plaintiff's
interests in expeditious civil proceedings weighed against the
prejudice to the plaintiff caused by the delay; (4) the burden on
the defendants; (5) the interests of the court; and (6) the public
interest.
Adelphia, 2003 WL 22358819 at *3. The Adelphia court considered all six
of the factors in a balancing test to determine whether the grant of the stay
was appropriate.
Id. at *3-*7, see also Spanier,
95 A.3d at 345 (noting the
appropriate test is a six-factor balancing test).
Consideration of these six factors in deciding whether to grant or deny
a motion to stay a civil proceeding pending the resolution of a related criminal
matter is further supported by the four factors our Supreme Court considered
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when determining whether to grant or deny a motion to stay a case pending
an appeal. See Pa. Pub. Util. Comm’n v. Process Gas Consumers, 467
A.2d 805, 809 (Pa. 1983) (stating, “the standards established by the [court in
Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n,
259 F.2d 921
(D.C. Cir. 1958)] as refined by the [Washington Metro. Area Transit
Comm’n v. Holiday Tours, Inc.,
559 F.2d 841 (D.C. Cir. 1977)] decision
provide a rational basis for the issuance of a stay pending appeal and are
the criteria to be followed by the courts of this Commonwealth” (emphasis
added)). In Process Gas, our Supreme Court held the grant of a motion to
stay pending appeal is warranted if:
1. The petitioner makes a strong showing that he is likely to
prevail on the merits.
2. The petitioner has shown that without the requested relief, he
will suffer irreparable injury.
3. The issuance of a stay will not substantially harm other
interested parties in the proceedings.
4. The issuance of a stay will not adversely affect the public
interest.
Process Gas Consumers, 467 A.2d at 808. The Process Gas four-factors
test served as a template employed by the Adelphia court to assess the
propriety of staying a civil proceeding pending the resolution of a related
criminal case. Therefore, the factors identified in Process Gas, as augmented
by the district court in Adelphia, are the appropriate factors for a court to
consider, at a minimum, when deciding to grant or deny such a motion to
stay.
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Here, the trial court recognized the six factors to be considered as
prescribed by the court in Adelphia. Trial Court Opinion, 4/9/19, at 4.
However, the trial court’s analysis fell short of considering all six of the factors,
at a minimum, when the trial court considered only the first of the Adelphia
factors – similarity of issues. Id. Specifically, the trial court found that
Appellants’ argument in support of their motion to stay the civil procedures
relied upon “inadmissible and double hearsay evidence” in the form of
newspaper articles detailing that “Dougherty was the subject of federal and
state criminal investigations[.]” Id. at 3, 6. The record was devoid of specific
evidence of, inter alia, “sworn affidavits, search warrants, specific criminal
charges or indictments that might enable an Adelphia analysis[.]” Id. at 7.
As a result, the trial court was “[u]nable to determine from the record [] if
there [were] enough commonality of issues, parties and remedies sought to
satisfy the first of the Adelphia factors[.]” Id. at 8. This analysis of only the
first of the Adelphia factors did not adequately accommodate, acknowledge,
or permit vindication of Appellants’ constitutional rights. Therefore, we find it
was an abuse of discretion for the trial court not to weigh all six of the
Adelphia factors, at a minimum, before deciding to deny the motion to stay.
Consequently, we vacate the order denying Appellants’ motion to stay
and remand for further proceedings consistent with this opinion. On remand,
the trial court shall consider the indictments now filed against Appellants,
together with all additional facts and arguments offered by the parties, in
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addressing the Progress Gas factors, as augmented by the decision in
Adelphia.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/20
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