At the end of 2011, the Pennsylvania Supreme Court issued two decisions of significant importance to practitioners across the Commonwealth. First, in Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), the Court departed from federal law in holding that the collateral order doctrine applies to privilege decisions. Second, in Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa. 2011), the Court held that a post-judgment award of attorney’s fees as damages is separate from the merits portion of the case for purposes of determining whether a judgment is final and appealable. In Harris, the Court expressly rejected the federal approach to determining the appealability of privilege decisions that was set forth in Mohawk Industries, Inc. v. Carpenter, 558
U.S. ___, 130 S. Ct. 599 (2009). In Mohawk, the defendant sought to appeal an order that it produce documents it claimed were protected by the attorney-client privilege, arguing that the privilege decision was immediately appealable as a collateral order. The U.S. Supreme Court affirmed the court of appeals’ dismissal of the appeal, holding that “collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege.” The Supreme Court rejected concerns that its decision would have a “chilling effect” on attorney-client privilege, explaining that the opportunity to appeal the final judgment and seek a remand for a new trial provides “sufficient relief” from an order improperly requiring disclosure of privileged material. The Court said there were alternate ways to seek appellate relief, including an interlocutory appeal by permission and a writ of mandamus, as well as the “option” to defy the disclosure order.
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