[J-38-2017] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DIANA SHEARER AND JEFF SHEARER, : No. 93 MAP 2016
:
Appellants : Appeal from the Order of the Superior
: Court at No. 665 MDA 2015 dated
: March 9, 2016 Affirming the Order of the
v. : Court of Common Pleas of Lebanon
: County, Civil Division, at No. 2012-
: 01286 dated March 16, 2015, exited
SCOTT HAFER AND PAULETTE FORD, : March 17, 2015.
:
Appellees : ARGUED: May 9, 2017
CONCURRING OPINION
JUSTICE WECHT DECIDED: January 18, 2018
I join the learned Majority in full. I write separately to express concerns regarding
some aspects of this case.
The trial court issued a protective order disallowing Appellants’ counsel or
representative from attending the standardized testing based upon Pa.R.C.P. 4012’s
grant of authority to a trial court to enter protective orders as justice requires when good
cause is shown. The trial court’s determination that Appellees showed good cause was
based, in part, upon the ethical grounds that Dr. Malatesta asserted. I express no
judgment on the merits of the trial court’s finding. Nonetheless, I would caution courts
to subject such claims to careful scrutiny.1 Otherwise, expert witnesses, rather than
judges, will define the scope and process of discovery.
1
This is especially true where, as here, there is some disagreement as to which
ethical standards apply. See Brief of Appellants at 20-21 (contending that Dr. Malatesta
relied upon outdated standards, and relied upon therapeutic standards rather than
forensic standards). The difference between therapeutic (treatment-related) standards
(continued…)
Relatedly, I detect a palpable risk that reliance upon standards written by non-
governmental organizations, such as the APA and NAN in this case, may run afoul of
the non-delegation doctrine. Dr. Malatesta was concerned about the APA guidelines,
not only for their ethical implications, but because the Commonwealth of Pennsylvania’s
State Board of Psychology has made compliance with the APA’s ethical guidelines and
code of conduct mandatory by incorporating those provisions into its Code of Ethics.
See 49 Pa. Code § 41.61(3)(e). Non-compliance is grounds for disciplinary action. See
63 Pa.C.S. § 1208(a)(9); Brief of Appellees at 30; Amicus Brief of the Pennsylvania
Psychological Association at 16-18.
The General Assembly may authorize a board to develop ethical guidelines or
codes. See Pa. State Assoc. of Twp. Supervisors v. Thornburgh, 405 A.2d 614, 617
(Pa. Cmwlth. 1979). However, the General Assembly or the Board may not delegate
that responsibility to a third party without providing clear guidelines. See State Bd. of
Chiropractic Examiners v. Life Fellowship, 272 A.2d 478, 481 (Pa. 1971); see also Protz
v. W.C.A.B.. (Derry Area Sch. Dist.), 161 A.3d 827, 835 (Pa. 2017) (holding that statute
designating the “most recent edition” of the American Medical Association guide as the
source for determining percentage of disability for workers’ compensation purposes was
an impermissible delegation because the legislature did not set any particular policy or
“prescribe any standards to guide and restrain the AMA’s discretion”). While we have
neither the record nor the advocacy in this case to resolve the delegation issue or even
(…continued)
and forensic (those evaluations and assessments performed or opinions developed for
use in court) standards will often be relevant (and at times critical) in these types of
evaluations.
[J-38-2017] [MO: Todd, J.] - 2
reach its merits, boards and agencies should be cognizant of the issue and should
attend diligently to its implications.2
2
See David N. Wecht & Jennifer H. Forbes, Discipline of Pennsylvania
Psychologists Relies Upon an Unlawful Delegation of Rulemaking Authority,
PENNSYLVANIA FAMILY LAWYER 201 (2010).
[J-38-2017] [MO: Todd, J.] - 3