J-A25037-16
2016 PA Super 237
MARK E. KELLEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAURIE S. PITTMAN AND BEACON
PSYCHOLOGICAL ASSOCIATION OF
PENNSYLVANIA, LLC.
APPEAL OF: LAURIE S. PITTMAN
Appellant No. 384 MDA 2016
Appeal from the Order Entered February 18, 2016
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2014-06752
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 04, 2016
Appellant Laurie S. Pittman, Ph.D., appeals from the discovery order
entered on February 18, 2016, in the Court of Common Pleas of Cumberland
County which revised the information the trial court had ordered her to
disclose to Appellee Mark E. Kelley in its prior discovery order entered on
February 4, 2016. For the reasons that follow, we hold that the pretrial
discovery orders at issue are immediately appealable pursuant to the
collateral order doctrine, and we reverse.
The trial court set forth the relevant facts and procedural history
herein as follows:
*Former Justice specially assigned to the Superior Court.
J-A25037-16
Statement of Facts and Procedural History
Though the instant action was commenced in 2014, it has
at its root the drawn out and procedurally torturous divorce and
custody action between [Appellee] and Jessica Kelley, docketed
to No. 2010-06305 in the Cumberland County Court of Common
Pleas. In the course of that action, Jessica Kelley engaged the
services of [Appellant][1] for the performance of a custody
evaluation. The custody evaluation was performed; however, it
was performed without [Appellee’s] consent or participation.
The evaluation relied solely on documentary evidence and
interviews provided by Jessica Kelley and the children, all
conducted in one day, during a roughly six hour long period.
The roughly forty page custody evaluation report contained
recommendations regarding custody arrangements, as well as
recommending that [Appellee] undergo therapy. The custody
evaluation report was entered into evidence, and [Appellant]
testified with regard to the contents of the report, over
[Appellee’s] objection.
[Appellee] commenced the case by the filing of a writ of
summons on November 29, 2014. [Appellant] entered a rule to
file complaint on the [Appellee] on or about January 05, 2015.
[Appellee] filed the Complaint on February 09, 2015, and served
both Defendants, [Appellant] and Beacon Psychological
Association. [Appellee] alleged that his character was defamed
by [Appellant’s] report and the dissemination of the report to
other mental health professionals and to the [c]ourt. [Appellee]
also alleged that [Appellant] was negligent in preparing her
evaluation without any input from [Appellee], despite [Appellant]
noting in her report that Jessica Kelley was at times untruthful
and attempting to manipulate the findings of the report.
[Appellee’s] certificate of merit as to [Appellant] was filed on
March 10, 2015.
On March 25, 2015, [Appellant] filed preliminary objections
to [Appellee’s] complaint, which were listed for oral argument
before a panel of this [c]ourt. On April 09, 2015, [Appellee]
entered a default judgment against Defendant, Beacon
Psychological Association. On April 21, 2015, this [c]ourt
entered an Order overruling [Appellant’s] preliminary objections.
An answer with new matter was filed by [Appellant] on May 08,
1
Appellant is a licensed forensic psychologist.
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2015. [Appellee] filed a reply to [Appellant’s] new matter on
May 28, 2015.
On September 16, 2015, [Appellee] filed the motion to
compel supplemental discovery at the heart of the instant
appeal. [Appellant] filed a response to the motion on September
30, 2015; [Appellee] filed a reply to [Appellant’s] response on
October 14, 2015; and the matter was scheduled for oral
argument on October 22, 2015. Following the sudden and
unexpected incapacitation of [Appellant’s] counsel, the oral
argument was continued until January 22, 2016, to allow
[Appellant] to present her position on the motion to compel
discovery. In the interim, on October 28, 2015, [Appellant] filed
an objection to [Appellee’s] subpoena for the production of
documents and records.
On January 22, 2016, this [c]ourt heard [Appellant’s] oral
argument on this matter and took the parties’ positions under
advisement. On February 04, 2016, this [c]ourt entered the
appealed-from Order, which read in relevant part (emphasis
original):
Accordingly, IT IS HEREBY ORDERED AND
DIRECTED that [Appellant] shall disclose to [Appellee]
the following:
1. [Appellant’s] date of birth.
2. [Appellant’s] current home address.
3. For each legal matter in which she testified as an
expert witness since 2012 she will provide the
caption of each case, the county which the case was
filed and the date on which she testified.
4. All documents and records [Appellant] reviewed in
preparation of her expert report in the case of
[Appellee] v. Jessica Kelley, No. 10-6305 Civil,
Cumberland County, Pennsylvania.
5. Copies of all tests completed by Jessica Kelley and
her children in connection with the custody
evaluation report she prepared in the case of
[Appellee] v. Jessica Kelley, 10-6305 Civil,
Cumberland County,
Pennsylvania[.]
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On February 18, 2016, following communication with
counsel for both parties, this [c]ourt issued a second Order,
clarifying and limiting the material to be disclosed by expressly
prohibiting disclosure of [Appellant’s] home address by
[Appellee’s] counsel to [Appellee]. [Appellant] filed her motion
for reconsideration on February 19, 2016; [Appellee] filed his
reply on February 24, 2016; and [Appellant] filed her sur-reply
on February 26, 2016. On March 04, 2016, this [c]ourt denied
[Appellant’s] motion for reconsideration and declined to certify
this discovery matter as fitting for an interlocutory appeal
pursuant to 42 Pa.C.S.A. §702.[2] [Appellant] filed her notice of
appeal to the Superior Court on March 07, 2016.
Trial Court Opinion, filed 5/9/15, at 2-5.
On March 21, 2016, Appellant filed her concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), which spanned
three pages and contained twelve numbered errors. On May 9, 2016, the
trial court filed its opinion pursuant to Pa.R.A.P. 1925(a).
In her brief, Appellant presents the following statement of the
questions involved:
1. Whether the trial court erred by granting Appellee[’s] []
Motion to Compel discovery and ordering the disclosure of
confidential mental health records of non-parties whose safety
and well-being would be jeopardized by the disclosure of such
records to a known abuser?
2. Whether the trial court erred by ordering the disclosure of
mental health records of non-parties in violation of the
psychologist-patient privilege, HIPPA, and statutory prohibitions
2
Specifically, the trial court stated that: “this matter appearing to be a
simple discovery issue pertinent to [Appellee’s] claim of defamation and
professional negligence on the part of [Appellant], the request that this
[c]ourt certify this matter as an interlocutory appeal pursuant to 42
Pa.C.S.A. § 702, is DENIED.”
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against the release of confidential records of an abuse
counselor?
3. Whether the trial court erred by ordering the disclosure of
Appellant[‘s] [ ] home address to counsel for Appellee [] where
[Appellant] had previously reported [Appellee] to ChildLine and
where [Appellant] fears for the safety of her ailing husband and
disabled children who reside with her?
Brief of Appellant at 5.
In reviewing the propriety of a discovery order, we determine whether
the trial court committed an abuse of discretion and, to the extent that we
are faced with questions of law, our scope of review is plenary.
Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1125
(Pa.Super. 2007); See also PECO Energy Co. v. Insurance Co. of North
America, 852 A.2d 1230, 1233 (Pa.Super. 2004) (“The trial court is
responsible for ‘[overseeing] discovery between the parties and therefore it
is within that court's discretion to determine the appropriate measure
necessary to insure adequate and prompt discovering of matters allowed by
the Rules of Civil Procedure.’”).
Generally, an appellate court's jurisdiction extends only to the review
of a final order that disposes of all claims and of all parties or is certified as a
final order pursuant to Pa. R.A.P. 341(c). See Pa.R.A.P. 341(a) and (b).
However, Pa.R.A.P. 313(a) provides that “[a]n appeal may be taken as of
right from a collateral order of an administrative agency or lower court.”
Whether an order is appealable as a collateral order implicates this Court's
jurisdiction to entertain an appeal of such an order; therefore, as a threshold
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question, we must make an independent determination as to whether the
trial court’s pretrial discovery orders are appealable as collateral orders
pursuant to Pa.R.A.P. 313, despite its holding to the contrary in its March 4,
2016, order. Commonwealth v. Kennedy, 583 Pa. 208, 215, 876 A.2d
939, 943 (2005).
A “collateral order” is defined 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.” Pa.R.A.P. 313(b). Typically, discovery orders are not final,
and are, therefore, unappealable. Jones v. Faust, 852 A.2d 1201, 1203
(Pa.Super. 2004). Notwithstanding, a discovery order that involves the
dissemination of ostensibly privileged or confidential material is appealable
as collateral to the principal action pursuant to Pa.R.A.P. 313. Id.
As this Court has explained:
Prior to the decision of the Pennsylvania Supreme Court in
Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999),
Pennsylvania courts did not often entertain interlocutory appeals
from discovery orders, unless the discovery order was not
related in any way to the merits of the action itself. In
Schwartz, the Pennsylvania Supreme Court revised this rule
and held that an appeal from a discovery order raising a
question of the application of a privilege is separable from the
underlying issue, so long as the issue of privilege may be
addressed by an appellate court without analysis of the
underlying issue. Schwartz, at 483, 729 A.2d at 551–52.
***
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The Schwartz case proceeded to the Pennsylvania
Supreme Court, which held that the trial court's order
“compelling the Bureau of Professional and Occupational Affairs
to produce its investigative file pertaining to complaints filed
against a dentist, [was] appealable under the exception to the
final order rule for collateral orders.” Id. at 549. The Court
reasoned that (1) “the issues of privilege raised by the Bureau
[could] be addressed without analysis of the alleged negligence
of the dentists[,]” thereby meeting the requirement of
“separability” for purposes of the collateral order doctrine; (2)
the Bureau's assertion that the file was subject to various
privileges met the “importance” prong of the collateral order
doctrine because it involved “rights rooted in public policy” and
impacted “individuals other than those involved in this particular
litigation” thereby outweighing the countervailing interests of
avoiding piecemeal litigation or delay; and (3) the Bureau's claim
would be irreparably lost (thereby meeting the third prong of the
collateral order doctrine) if immediate appellate review was not
granted because, once purportedly privileged material is
divulged, “the disclosure of documents cannot be undone” and
subsequent appellate review would be rendered moot. Id. at
552. See also Berkeyheiser v. A–Plus Investigations, Inc.,
936 A.2d 1117, 1123–24 (Pa.Super. 2007) (“Pennsylvania courts
have held that discovery orders involving potentially confidential
and privileged materials are immediately appealable as collateral
to the principal action.”). . . .
T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056–58 (Pa.Super. 2008) (some
internal citations omitted).
We find that, as was the case in Schwartz, the discovery order at
issue herein meets the requirements of the collateral order doctrine. This
Court may examine the issues of privilege Appellant raises without analyzing
the underlying claims of defamation of character and professional negligence
Appellee set forth in his civil complaint. Also, Appellant’s assertion that the
requested materials are subject to various privileges, especially when the
materials sought may involve sensitive mental health information pertaining
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to non-parties some of whom are children, evokes the importance prong of
the collateral order doctrine since the privacy rights involved are deeply
rooted in public policy. See also, T.M. v. Elwyn, Inc., supra, at 1058.
Moreover, were this Court not to review the propriety of the trial court’s
discovery orders at this juncture, Appellant’s claims of privilege would be
irreparably lost, for she would be forced to disclose the requested
information in abidance with the trial court’s order, and that disclosure could
not be undone in a subsequent appeal. Id. In addition, her fear for her
safety and that of her family could not be assuaged. Upon finding Appellant
has met the requirements of the collateral order doctrine, we next proceed
to examine the issues she raises in the instant appeal. As these issues are
interrelated, we will address them together.
Appellant first explains that although she had set out to perform a
traditional custody evaluation, when Jessica Kelley and the Children alleged
Appellee had been physically and psychologically abusive toward the
Children, she no longer could remain neutral because she effectively became
an abuse counselor with an attendant legal obligation to inform the
authorities and the trial court of the suspected abuse to protect the Children
and their mother under 23 Pa.C.S.A. § 6311. Appellant urges that her
interviews, notes, and evaluations concerning the reported instances of
abuse are, therefore, statutorily protected under 23 Pa.C.S.A. § 5336(b)(2)3
3
This subsection provides that:
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and should not be turned over to Appellee through the litigation process.
Brief for Appellant at 7-8, 14-15.
Appellant adds that in addition to jeopardizing the safety of Jessica
Kelley and the Children, the trial court’s order will further result in the
violation of statutory provisions prohibiting confidential treatment records of
non-parties in contravention to 42 Pa.C.S.A. § 5944.4 In this regard,
§ 5336. Access to records and information
(b) Nondisclosure of confidential information.--The court
shall not order the disclosure of any of the following information
to any parent or party granted custody:
(1) The address of a victim of abuse.
(2) Confidential information from an abuse counselor or
shelter.
(3) Information protected under Chapter 67 (relating to
domestic and sexual violence victim address
confidentiality).
(4) Information independently protected from disclosure by
the child's right to confidentiality under the act of July 9,
1976 (P.L. 817, No. 143), known as the Mental Health
Procedures Act, or any other statute.
23 Pa. C.S.A. § 5336(b) (footnote omitted).
4
Entitled “Confidential communications to psychiatrists or licensed
psychologists,” this statute states:
No psychiatrist or person who has been licensed under the act of
March 23, 1972 (P.L. 136, No. 52), to practice psychology shall
be, without the written consent of his client, examined in any
civil or criminal matter as to any information acquired in the
course of his professional services in behalf of such client. The
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Appellant relies upon In the Interest of T.B., 75 A.3d 485 (Pa.Super.
2013) for the proposition that it is not the purpose for which one seeks
records that makes them confidential but rather it is the circumstances
under which the declarant made them which is dispositive. Brief of
Appellant at 18. Appellant avers laws protecting confidential
communications to psychiatrists or licensed psychologists serve the purpose
of aiding in effective treatment by encouraging clients to disclose information
without fear of the disclosure of such sensitive information or reprisal.
Appellant also highlights caselaw recognizing the privacy interests of third
parties whose medical records become an issue in litigation. Brief of
Appellant at 19-20. Appellant also relies upon Buckman v. Verazin, 54
A.3d 956 (Pa.Super. 2012) and Jones v. Faust, 852 A.2d 1201 (Pa.Super.
2004) in support of her observation that courts of this Commonwealth have
consistently recognized the privacy interest of third parties where their
medical records were at issue in litigation. Brief for Appellant at 18-20.
Appellant also posits the records Appellee seeks are irrelevant to a civil
action involving claims of defamation and professional negligence. Brief of
Appellant at 21. Appellant further challenges what she characterizes as the
confidential relations and communications between a
psychologist or psychiatrist and his client shall be on the same
basis as those provided or prescribed by law between an
attorney and client.
42 Pa.C.S.A. § 5944 (footnote omitted).
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harassing nature of Appellee’s request for her home address and date of
birth. Appellant reasons that even were this information to be released to
counsel only, her interest in her own safety and that of her family outweighs
any interest Appellee may have in performing an adequate investigation
pertaining to his civil lawsuit, especially in light of the fact she has provided
Appellee her full business address. Brief of Appellant at 22-23.
In support of his request for “all records pertaining to his children and
ex-wife’s custody evaluation and also the address and date of birth of
[Appellant],” Appellee maintains that Appellant was employed to perform a
custody evaluation, not to act as an abuse counselor. Brief of Appellee at 3.
Appellee further asserts that when Jessica Kelley sought the services of
Appellant to perform the custody evaluation for use at the custody
proceedings, she waived any potential privilege. Brief of Appellee at 4.
Appellee also baldy states that his defamation and professional negligence
claims will be compromised were he not provided access to the information
Appellant reviewed when preparing the report which is the basis for those
claims. Id. at 6.
In its Rule 1925(a) Opinion, the trial court characterizes the dispute
between the parties as centering on the question “of whether [Appellant]
improperly engaged in the process of performing a custody evaluation
without a court order and without any involvement or participation from
[Appellee].” Trial Court Opinion, filed 5/6/16, at 5-6 (footnotes omitted).
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The court reasons that because Appellant completed her evaluation and
submitted it along with a recommendation that Jessica Kelley be granted
sole custody of the Children, she was neither serving as an abuse counselor
or as a fact witness in the underlying custody action, but rather “was clearly
functioning as a child custody evaluator.” Id. at 8. As such, the trial court
posits that, “any applicable privileges were waived by the act of Mother
engaging [Appellant] to provide a custody evaluation for litigation purposes.”
Id. at 14.
Moreover, the trial court relies upon our Supreme Court’s decision in
Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455 (2003) for the
proposition that one has no constitutional right to privacy in her home
address because such information is a matter of public record and reasons
that her address readily could be accessible should Appellee secure the
services of a private detective. In the trial court’s view, Appellant has failed
to show that her personal safety would be at risk should she be required to
divulge this information, especially in light of the fact ChildLine found
Appellant’s report to be unfounded and no other reported incidents of abuse
have been reported since that time. Id. at 18-19. Similarly, the trial court
believes that in light of Duncan, supra, Appellant enjoys no reasonable
expectation of privacy in her date of birth, which information “is widely
available in today’s society,” and that she has not established she will suffer
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“reasonable harm” should Appellee have access thereto. Trial Court Opinion,
filed 5/9/16, at 20. We are compelled to disagree.
Pennsylvania's Rules of Civil Procedure permit discovery regarding
“any matter, not privileged, which is relevant to the subject matter involved
in the pending action,” whether or not admissible at trial, provided that “the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” Pa.R.C.P. 4003.1; however, the Rules prohibit
irrelevant discovery, or discovery sought for an improper purpose. Pa.R.C.P.
4011; see also Keystone Dedicated Logistics, LLC v. JGB Enterprises,
Inc., 77 A.3d 1, 12 (Pa.Super. 2013) (stating the matters about which a
discovery inquiry is made must bear pertinently upon the matters which one
will be required to prove affirmatively at trial). The instant lawsuit involves
two counts, the first of which concerns allegedly defamatory statements
contained in Appellant’s undated, written evaluation report and iterated at
the custody hearing held on March 7, 2014. In addition, Appellee sets forth
a negligence count wherein he avers that in completing her evaluation report
Appellant deviated from the American Psychological Standards.
In a defamation case, a plaintiff must prove: “(1) The defamatory
character of the communication; (2) its publication by the defendant; (3) its
application to the plaintiff; (4) the understanding by the recipient of its
defamatory meaning; (5) the understanding by the recipient of it as
intended to be applied to the plaintiff; (6) special harm resulting to the
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plaintiff from its publication; and (7) abuse of a conditionally privileged
occasion.” Porter v. Joy Realty, Inc., 872 A.2d 846, 849 n. 6 (Pa.Super.
2005), quoting, 42 Pa.C.S.A. § 8343(a). To prevail in any negligence action,
a plaintiff must establish the defendant owed him a duty; the defendant
breached the duty; the plaintiff suffered actual harm; and a causal
relationship existed between the breach of duty and the harm. The
determination of whether there was a breach of duty in a professional
malpractice action requires the plaintiff additionally to show that the
defendant's conduct fell below the relevant standard of care applicable to the
performance of the professional services at issue. Such a determination
typically requires expert testimony since the negligence of a professional
encompasses matters not within the ordinary knowledge and experience of a
layperson. French v. Commonwealth Associates, Inc., 980 A.2d 623,
630–31 (Pa.Super. 2009).
We find that the requested information the trial court found to be
discoverable in its February 4, 2016, Order, as clarified in its February 18,
2016, Order is both irrelevant to the instant defamation and professional
negligence claims and confidential under the Child Protective Services Law,
23 Pa.C.S.A. §§ 6301 et seq.
Appellee fails to aver, nor can we discern, how obtaining all documents
and records Appellant reviewed in preparation of her written report will
further his lawsuit. Regardless of what information Appellant may have
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utilized when compiling her ultimate evaluation, Appellee is in possession of
her report which was entered into evidence as an Exhibit at the custody
hearing at which time Appellee also subjected her to cross-examination
thereon. Indeed, this testimonial and documentary evidence was sufficient
for Appellee’s expert to prepare a counter-report criticizing Appellant’s
professionalism. See Brief of Appellant at 21. Appellant also provided
Appellee with additional information in her answers and objections to
Appellee’s first set of interrogatories dated September 29, 2015. Simply
put, it is not the contents of Appellant’s complete file which forms the basis
of Appellee’s lawsuit, but rather the statements Appellant made in her
comprehensive report and at the custody hearing, as well as the standards
by which she performed her professional services, which are at issue.
Similarly, Appellee has not established how his broad request for the
caption of each legal matter in which Appellant testified since 2012, which
most likely would result in a need to reveal the contents of sealed records,
would lead to the discovery of admissible evidence in his lawsuit which
challenges Appellant’s handling of the custody evaluation relative to his
Children. To the contrary, Appellee’s goal of establishing his case may be
accomplished by less intrusive means. For instance, Appellee may question
Appellant generally at trial regarding her familiarity with testifying as an
expert witness and the means by which she drew the conclusions in her
evaluation report in the instant matter. Appellee also can challenge
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Appellant’s methodologies through his own expert’s testimony and counter-
report at trial.
In addition, Appellee has Appellant’s business address; therefore, we
are hard pressed to discern how knowledge of her personal address and her
date of birth, even if it is disclosed only to Appellee’s counsel, will further
Appellee’s claims. While the trial court relies upon Duncan in reaching its
contrary decision, that matter is clearly distinguishable from the one before
us. Therein, our Supreme Court reviewed a suppression ruling in a criminal
matter and considered the legal issue of whether the appellant had a
reasonable expectation of privacy under the Pennsylvania Constitution in the
name and address information disclosed by his bank. Commonwealth v.
Duncan, 572 Pa. 438, 445, 817 A.2d 455, 459 (2003). The trial court
speculates Appellant may not be accessible at the time of trial because she
indicated she is an independent contractor of Defendant Beacon
Psychological Association of Pennsylvania, LLC., See Trial Court Opinion,
filed 5/9/15, at 19-20; however, the record is devoid of any evidence
Appellant intends to sever her relationship with Beacon or that she would not
provide a new business address were she to do so. 5 As such, we deem the
requested information to be irrelevant in the instant lawsuit.
5
It is also noteworthy that the trial court’s position in this regard runs afoul
of its prior statement that one’s address and date of birth are readily
available.
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We further find that while Appellant initially came into contact with
Jessica Kelley and the Children as a neutral third party in connection with a
custody evaluation, when she obtained information of their abuse, she
became a mandatory reporter of that abuse. “Pennsylvania's Child
Protecti[ve] Services Law, 23 Pa.C.S. § 6301 et seq., requires individuals
who, in the course of their employment, come into contact with children to
make a report to the local children and youth agency when they have
reasonable cause to suspect, on the basis of their medical, professional, or
other training and experience, that a child who has come before them in
their professional or official capacity is an abused child. 23 Pa.C.S. § 6311.”
Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104, 130 n. 9
(Pa.Super. 2016), reargument denied, (Sept. 21, 2016).
23 Pa.C.S.A. § 6311 provides the following persons are required to
report suspected child abuse:
(a) Mandated reporters.--The following adults shall make a
report of suspected child abuse, subject to subsection (b), if the
person has reasonable cause to suspect that a child is a victim of
child abuse:
(1) A person licensed or certified to practice in any health-
related field under the jurisdiction of the Department of State.
***
(3) An employee of a health care facility or provider
licensed by the Department of Health, who is engaged in the
admission, examination, care or treatment of individuals.
***
(7) An individual paid or unpaid, who, on the basis of the
individual's role as an integral part of a regularly scheduled
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program, activity or service, is a person responsible for the
child's welfare or has direct contact with children.
23 Pa.C.S.A. § 6311(a) (emphasis added). In addition, the stated purpose
of the Child Protective Services Law is:
to encourage more complete reporting of suspected child abuse;
to the extent permitted by this chapter, to involve law
enforcement agencies in responding to child abuse; and to
establish in each county protective services for the purpose of
investigating the reports swiftly and competently, providing
protection for children from further abuse and providing
rehabilitative services for children and parents involved so as to
ensure the child's well-being and to preserve, stabilize and
protect the integrity of family life wherever appropriate or to
provide another alternative permanent family when the unity of
the family cannot be maintained. It is also the purpose of this
chapter to ensure that each county children and youth agency
establish a program of protective services with procedures to
assess risk of harm to a child and with the capabilities to
respond adequately to meet the needs of the family and child
who may be at risk and to prioritize the response and services to
children most at risk.
23 Pa.C.S.A. § 6302. Our Supreme Court has stated that this objective
would be frustrated if, for example:
child death reviews are discoverable to plaintiffs searching for
potential mistakes in order to support a lawsuit. See V.B.T., at
1333 (“[sections 6339 and 6340] do not include a civil plaintiff
seeking discovery in pursuit of a claim for damages based upon
alleged conduct of the abused child.”). Openness and necessary
admissions of employees are vital to improving the care of
children subject to CYS and DPW oversight. If candor is not
encouraged through confidentiality, improvement will be
compromised as employees must inevitably seek to shield their
own errors from reviewers out of fear of being sued. This
scenario flies in the face of the designed goals of the CPSL. See
Pennsylvania v. Ritchie, 480 U.S. 39, 60–61, 107 S.Ct. 989,
94 L.Ed.2d 40 (1987) (as designated in CPSL, Pennsylvania has
“compelling interest in protecting its child-abuse information.”).
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In re Estate of Wagner, 584 Pa. 49, 58, 880 A.2d 620, 625 (2005).
In a similar vein, the type of disclosure the trial court’s pretrial
discovery orders would permit herein, the revelation of information
pertaining to children and other non-parties who have not given their
consent and personal, identifying information pertaining to a mandatory
reporter which may jeopardize her privacy and safety, is not aimed at
furthering the purpose of the Child Protective Services Law. Were Appellee
permitted to obtain such sensitive information in furtherance of his civil
defamation and professional negligence claims, the result would likely create
a chilling effect on others who are mandatory reporters of suspected child
abuse, whether or not the report is later determined to be unfounded. While
Appellee’s interest in advancing his civil lawsuit certainly is important, that
of our legislature in striving to protect and rehabilitate the victims of abuse
is of superior importance. Accordingly, we reverse the trial court’s February
4, 2016, and February 18, 2016, discovery orders granting Appellee’s
discovery requests.6
Orders reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
6
Given our holding that under the facts presented herein the information
Appellee seeks is not relevant and that the discovery orders are in
contravention to the Child Protective Services Law, we need not address the
effect of HIPPA, the Psychologist-Patient privilege, or statutes relating to the
release of the confidential records of an abuse counselor.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2016
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Kelley, M. v. Pittman, L.
Combined Opinion