M.W.M. v. Buzogany, J. ( 2023 )

J-A29024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
M.W.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH A. BUZOGANY, M.D., : No. 379 WDA 2022
ARMSTRONG-INDIANA BEHAVIORAL :
AND DEVELOPMENTAL HEALTH :
PROGRAM, INDIANA REGIONAL :
MEDICAL CENTER, BARBARA A. :
MCKEE AS THE ADMINISTRATOR OF :
THE ESTATE OF DONALD L. MCKEE, :
ESQUIRE, THE COUNTY OF INDIANA, :
PA, AMY CLINE, LOUISE KELLER
BIVENS, MSW, AND SALLY PRUGH
Appeal from the Order Entered March 10, 2022
In the Court of Common Pleas of Indiana County Civil Division at No(s):
12227 CD 2018
M.W.M. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH A. BUZOGANY, M.D., : No. 380 WDA 2022
ARMSTRONG-INDIANA BEHAVIORAL :
AND DEVELOPMENTAL HEALTH :
PROGRAM, INDIANA REGIONAL :
MEDICAL CENTER, BARBARA A. :
MCKEE AS THE ADMINISTRATOR OF :
THE ESTATE OF DONALD L. MCKEE, :
ESQUIRE, THE COUNTY OF INDIANA, :
PA, AMY CLINE, LOUISE KELLER :
BIVENS, MSW, AND SALLY PRUGH :
J-A29024-22
Appeal from the Order Entered March 10, 2022
In the Court of Common Pleas of Indiana County Civil Division at No(s):
12227 CD 2018
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED: July 21, 2023
In this consolidated appeal, Appellant, M.W.M., appeals from two March
10, 2022 orders entered in the Court of Common Pleas of Indiana County that
granted, in part, two motions to compel specific responses to interrogatories,
as well as the production of Appellant’s medical, mental health, and substance
abuse treatment records. One of the orders granted a motion to compel filed
by Joseph A. Buzogany, M.D. (“Dr. Buzogany”), and the other granted a
motion to compel filed jointly by Donald L. McKee, Esquire (“Attorney McKee”)
and the County of Indiana, Pennsylvania (“Indiana County”).1 We affirm the
____________________________________________
1 The appeal docketed in this Court at 379 WDA 2022 involves Appellant’s
appeal from the March 10, 2022 order granting, in part, the motion to compel
specific responses and the production of documents filed by Dr. Buzogany, as
discussed in greater detail infra (referred to as “Trial Court Order
(Buzogany)”). The appeal docketed in this Court at 380 WDA 2022 involves
Appellant’s appeal from a separate March 10, 2022 order granting, in part,
the motion to compel specific responses and the production of documents filed
by Attorney McKee and Indiana County, as discussed in greater detail infra
(referred to as “Trial Court Order (McKee)”). In a May 22, 2022 per curiam
order, this Court, sua sponte, consolidated the two appeals.
During the events giving rise to Appellant’s causes of action, Attorney McKee
worked with the Public Defender’s Office of Indiana County and represented
Appellant at a mental health commitment hearing, as discussed more fully
infra. Attorney McKee is now deceased, and his interests are represented by
Barbara A. McKee, as the Administrator of the Estate of Donald L. McKee. See
Trial Court Order, 12/24/20. The caption of the appeal docketed at 379 WDA
-2-
J-A29024-22
March 10, 2022 orders but remand this case for further proceedings in
accordance with this memorandum.2
The trial court summarized the factual history as follows:
This case involves an incident that occurred on December 20,
2016. The Pennsylvania State Police received a [telephone] call
indicating that [Appellant] was contemplating suicide. This report
led to an altercation between [Appellant] and the Pennsylvania
State Police[. Appellant] was tased during the incident. It was
____________________________________________
2022 reflected this development, and we have corrected the caption in the
appeal filed at 380 WDA 2022 accordingly. For ease of identification, we refer
to Barbara A. McKee as Administrator of the Estate of Donald L. McKee simply
as “Attorney McKee.”
Armstrong-Indiana Behavioral and Developmental Health Program (“BDHP”),
Indiana Regional Medical Center (“IRMC”), Amy Cline (“Cline”), Louise Keller
Bivens, MSW (“Bivens”), and Sally Prugh (“Prugh”) did not participate in the
consolidated appeals, as they were not parties to any effort to compel more
specific discovery responses and demand the production of mental health
records. Moreover, we have corrected the captions of the consolidated
appeals to reflect the fact that the trial court struck the Public Defender’s
Office of Indiana County as a party from this litigation. See Trial Court Order,
5/27/20.
2On August 1, 2022, Attorney McKee and Indiana County filed a supplemental
reproduced record with this Court that contained excerpts from Appellant’s
wife’s deposition. Supplemental Reproduced Record, 8/1/22, at 29-33. On
August 2, 2022, Appellant filed, with this Court, a motion to strike that portion
of the supplemental reproduced record filed by Attorney McKee and Indiana
County. Attorney McKee and Indiana County filed a response to Appellant’s
motion to strike with this Court on August 8, 2022.
It is well-established that, “for purposes of appellate review, what is not in the
certified record does not exist.” Ruspi v. Glatz, 69 A.3d 680, 691 (Pa. Super.
2013), appeal denied, 81 A.3d 78 (Pa. 2013). A review of the certified record
in the case sub judice demonstrates that Appellant’s wife’s deposition is not
part of the record. As such, we grant Appellant’s motion to strike the excerpts
of his wife’s deposition that are contained within the supplemental reproduced
record submitted by Attorney McKee and Indiana County.
-3-
J-A29024-22
later determined that [Appellant] was under the influence of
prescribed medication and alcohol during this altercation.
[Appellant] was taken into custody and transported to IRMC.
While at IRMC, [Appellant’s] wife executed the documents
necessary to have [Appellant] involuntarily committed under 50
P.S. [§ ]7302[ (relating to the involuntary emergency
examination and treatment authorized by a physician to
determine whether the person is severely mentally disabled and
in need of immediate mental health treatment).3 Appellant] was
____________________________________________
3 Section 7302 of the Mental Health Procedures Act, 50 P.S. §§ 7101 - 7503
(“MHPA”), states, in pertinent part, as follows:
§ 7302. Involuntary emergency examination and
treatment authorized by a physician - Not to exceed one
hundred twenty hours
(a) Application for Examination. - Emergency examination
may be undertaken at a treatment facility upon the certification of
a physician stating the need for such examination; or upon a
warrant issued by the county administrator authorizing such
examination; or without a warrant upon application by a physician
or other authorized person who has personally observed conduct
showing the need for such examination.
(1) Warrant for Emergency Examination. - Upon
written application by a physician or other responsible party
setting forth facts constituting reasonable grounds to
believe a person is severely mentally disabled and in need
of immediate treatment, the county administrator may issue
a warrant requiring a person authorized by him, or any
peace officer, to take such person to the facility specified in
the warrant.
(2) Emergency Examination Without a
Warrant. - Upon personal observation of the conduct of a
person constituting reasonable grounds to believe that he is
severely mentally disabled and in need of immediate
treatment, and physician or peace officer, or anyone
authorized by the county administrator may take such
person to an approved facility for an emergency
examination. Upon arrival, he shall make a written
-4-
J-A29024-22
evaluated by [Dr.] Buzogany and a [commitment] hearing under
50 P.S. [§ ]7303[ (relating to the extended involuntary
emergency mental health treatment certified by a judge or mental
health review officer)4] was held.
____________________________________________
statement setting forth the grounds for believing the person
to be in need of such examination.
(b) Examination and Determination of Need for Emergency
Treatment. - A person taken to a facility shall be examined by a
physician within two hours of arrival in order to determine if the
person is severely mentally disabled within the meaning of [50
P.S. § 7301(b)(1)] and in need of immediate treatment. If it is
determined that the person is severely mentally disabled and in
need of emergency treatment, treatment shall be begun
immediately. If the physician does not so find, or if at any time it
appears there is no longer a need for immediate treatment, the
person shall be discharged and returned to such place as he may
reasonably direct. The physician shall make a record of the
examination and his findings. In no event shall a person be
accepted for involuntary emergency treatment if a previous
application was granted for such treatment and the new
application is not based on behavior occurring after the earlier
application.
50 P.S. § 7302(a) and (b).
4 Section 7303 of the MHPA states, in pertinent part, as follows:
§ 7303. Extended involuntary emergency treatment
certified by a judge or mental health review officer - Not
to exceed twenty days
(a) Persons Subject to Extended Involuntary Emergency
Treatment. - Application for extended involuntary emergency
treatment may be made for any person who is being treated
pursuant to [50 P.S. § 7302] whenever the facility determines
that the need for emergency treatment is likely to extend beyond
120 hours. The application shall be filed forthwith in the court of
common pleas, and shall state the grounds on which extended
emergency treatment is believed to be necessary. The application
-5-
J-A29024-22
Trial Court Order (Buzogany), 3/10/22, at ¶1; see also Trial Court Order
(McKee), 3/10/22, at ¶1. Upon conclusion of the December 22, 2016
commitment hearing, a mental health review officer authorized Appellant’s
extended commitment pursuant to Section 7303 of the MHPA.
Sometime thereafter, Appellant filed a petition for review of the
certification for his involuntary emergency examination and treatment
(“petition for review”). Appellant’s petition for review was docketed at trial
court docket number 12250 CD 2016. On December 27, 2018, the trial court
granted Appellant’s petition for review, finding that the warrant for Appellant’s
emergency examination was not properly issued and that Appellant’s due
process rights, as they pertain to the involuntary commitment process under
the MPHA, were violated. Trial Court Opinion and Order (12250 CD 2016),
12/27/18, at 8, 12. In granting Appellant’s petition for review, the trial court
vacated Appellant involuntary commitment under Section 7303 and expunged
Appellant’s records of involuntary commitment under Section 7302 and
Section 7303.5 Id.
____________________________________________
shall state the name of any examining physician and the
substance of his opinion regarding the mental condition of the
person.
50 P.S. § 7303(a).
5The trial court’s opinion and order, expunging Appellant’s Section 7302 and
Section 7303 commitment record, was made part of the certified record in the
case sub judice as an attachment to Appellant’s motion to determine the
necessity to file a certificate of merit as to, inter alia, Dr. Buzogany.
-6-
J-A29024-22
Appellant subsequently filed a legal action against Dr. Buzogany,
Attorney McKee, Indiana County, BDHP, IRMC, Cline, Bivens, and Prugh
alleging they violated his due process rights and, as to certain defendants,
committed professional malpractice during the intake process in December
2016. On December 12, 2019, Appellant filed a third amended complaint,
asserting the following causes of action: Count I - violations of his
constitutional rights under the Fourth and Fourteenth Amendments; Count
II - violations of his procedural due process rights; Count III - violations of his
substantive due process rights; Count IV – gross negligence and willful
misconduct under Section 7114(a) of the MHPA;6 Count V – legal malpractice;
and Count VI – professional malpractice.7 Third Amended Complaint,
____________________________________________
6 Section 7114(a) of the MHPA states,
In the absence of willful misconduct or gross negligence, a county
administrator, a director of a facility, a physician, a peace officer
or any other authorized person who participates in a decision that
a person be examined or treated under this act, or that a person
be discharged, or placed under partial hospitalization, outpatient
care or leave of absence, or that the restraint upon such person
be otherwise reduced, or a county administrator or other
authorized person who denies an application for voluntary
treatment or for involuntary emergency examination and
treatment, shall not be civilly or criminally liable for such decision
or for any of its consequences.
50 P.S. § 7114(a).
7 In the third amended complaint, Counts I, II, and III involved Indiana
County, Dr. Buzogany, Attorney McKee, BDHP, Cline, IRMC, Prugh, and
Bivens; Count IV involved Indiana County, BDHP, and Cline; Count V involved
-7-
J-A29024-22
12/12/19, at ¶¶116 – 252. After discovery commenced, Attorney McKee and
Indiana County filed a motion to compel Appellant to fully respond to questions
1 and 2 of their first request for production of documents (“Attorney McKee
and Indiana County’s motion to compel”).8 See Attorney McKee and Indiana
County’s Motion to Compel, 9/25/20, at ¶3. In their motion to compel,
Attorney McKee and Indiana County asserted, inter alia, that Appellant
impliedly waived any confidentiality privilege by placing his mental health at
issue in the pending litigation. Id. at ¶13. On October 13, 2020, Appellant
filed a reply and a brief in opposition to Attorney McKee and Indiana County’s
motion to compel.
On November 18, 2020, Dr. Buzogany filed a motion to compel more
specific responses to his interrogatories, numbered 6 through 9, and to his
request for production of documents, numbered 3, contained within his first
set of interrogatories and requests for production of documents (“Dr.
Buzogany’s motion to compel”).9 In his motion to compel, Dr. Buzogany
____________________________________________
Indiana County and Attorney McKee; and Count VI involved Dr. Buzogany,
IRMC, and Bivens. Third Amended Complaint, 12/12/19, at ¶¶116 – 252.
8 Attorney McKee and Indiana County’s motion to compel “relates to said
[parties’] efforts, through discovery, to obtain records and information relating
to [Appellant’s] history of medical and mental health treatment from January
1, 2013, to December 19, 2016[, with s]pecific emphasis [] placed upon
records from September 2016.” Trial Court Order (McKee), 3/10/22, at ¶4.
9 Dr. Buzogany's motion to compel “relates to [Dr.] Buzogany's efforts,
through discovery, to obtain records and information relating to [Appellant’s]
history of medical and mental health treatment, as well as any substance
-8-
J-A29024-22
asserted that Appellant impliedly waived any confidentiality privilege to his
mental health records by placing his mental health history directly at issue in
the current litigation. Dr. Buzogany’s Motion to Compel, 11/18/20, at ¶¶21,
25-26. Appellant filed a response to Dr. Buzogany’s motion to compel on
January 25, 2021.
On March 10, 2022, the trial court granted, in part, Dr. Buzogany’s
motion to compel. Trial Court Order (Buzogany), 3/10/22, at 6. Specifically,
the trial court ordered disclosure of all “records and information relating to
[Appellant’s] history of medical and mental health treatment, as well as any
substance abuse treatment, for the five-year period from December 20, 2011,
to December 19, 2016.” Id. (stating, “[t]o the extent [Dr. Buzogany’s motion
to compel] requests additional responses, said [m]otion is [denied]”). That
same day, the trial court granted, in part, Attorney McKee and Indiana
County’s motion to compel. Trial Court Order (McKee), 3/10/22, at 6.
Specifically, the trial court ordered responses to “all discovery requests
seeking records and information relating to [Appellant’s] history of medical
and mental health treatment, as well as any substance abuse treatment, for
the period from January 1, 2013, to December 19, 2016.” Id. (stating, “[t]o
the extent [Attorney McKee and Indiana County’s motion to compel] requests
____________________________________________
abuse treatment, for the ten-year period preceding the treatment identified in
the third amended complaint.” Trial Court Order (Buzogany), 3/10/22, at ¶4
(extraneous capitalization omitted).
-9-
J-A29024-22
additional responses, said [m]otion is [denied]”). As part of both March 10,
2022 orders, the trial court directed that all records produced in response to
Dr. Buzogany’s and Attorney McKee and Indiana County’s requests be
summitted to the trial court for in-camera review. The trial court further
stated that, upon review of the submitted records, the trial court “shall exclude
all records, the discovery of which is contrary to the findings of” the March 10,
2022 orders. Trial Court Order (Buzogany), 3/10/22, at 6; see also Trial
Court Order (McKee), 3/10/22, at 6. This appeal followed.10
Appellant raises the following issues for our review:
1. Did the [trial] court commit an error of law and set a
dangerously broad new precedent by deciding that when a
plaintiff challenges the denial of his due process and
statutory rights during the involuntary commitment
process, mental health records from beyond the 30-day
statutory window are relevant to whether a person was a
danger to himself or whether [a] defendant[] violated
plaintiff[’]s rights during the commitment process?
2. Did the [trial] court misapply Octave[ v. Walker, 103 A.3d
1255 (Pa. 2014)] and set a dangerously broad new
precedent by deciding that [] anyone who asserts a claim
that [his or her] rights were violated during the involuntary
commitment process has necessarily and impliedly waived
confidentiality and privilege as to 5-years' worth of mental
health, psychiatric, medical, and substance abuse treatment
records?
____________________________________________
10Both Appellant and the trial court complied with Pa.R.A.P. 1925. On April
18, 2022, the trial court filed its Rule 1925(a) opinion, stating it relied upon
the opinions that accompanied the March 10, 2022 orders. Trial Court
Opinion, 4/18/22.
- 10 -
J-A29024-22
3. Did the [trial] court abuse its discretion by ignoring that
there were less intrusive means by which [Dr. Buzogany,
Attorney McKee, and Indiana County] could obtain
information they sought and by refusing to require
continuing confidentiality?
Appellant’s Brief at 4 (extraneous capitalization omitted).11
____________________________________________
11 Appellant appeals from two orders overruling his claims of evidentiary
privilege to his medical, mental health, and substance abuse treatment
records and requiring disclosure of this information. These two orders are
immediately appealable as collateral orders pursuant to Pennsylvania Rule of
Appellate Procedure 313(b). See Pa.R.A.P. 313(b) (stating, “[a] collateral
order is 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”); see also Commonwealth v. Harris, 32
A.3d 243, 251 (Pa. 2011) (stating, “orders overruling claims of privilege and
requiring disclosure are immediately appealable under [Rule 313(b)]”).
We are cognizant that Indiana County, a political subdivision of this
Commonwealth, is a defendant-party in Appellant’s underlying cause of
action. As such, we must preliminarily examine whether this Court has
jurisdiction over the instant matter, or if the case should be transferred to the
Commonwealth Court. See Smith v. Ivy Lee Real Estate, LLC, 152 A.3d
1062, 1065 (Pa. Super. 2016) (stating, “this Court may, sua sponte, raise the
issue of whether an appeal should be transferred to the Commonwealth
Court”).
“Chapter Seven of the Judicial Code sets forth the legislatively ordained
division of labor between appellate courts in Pennsylvania.” Mohn v. Bucks
County Republican Comm., 218 A.3d 927, 930 (Pa. Super. 2019) (citation
and original quotation marks omitted); see also 42 Pa.C.S.A. §§ 702 - 764.
Section 742 of the Judicial Code states, “[this Court] shall have exclusive
appellate jurisdiction of all appeals from final orders of the courts of common
pleas, regardless of the nature of the controversy or the amount involved,
except such classes of appeals as are by any provision of this chapter within
the exclusive jurisdiction of [our] Supreme Court or the Commonwealth
Court.” 42 Pa.C.S.A. § 742 (emphasis added). Section 762 of the Judicial
Code, in pertinent part, states,
§ 762. Appeals from courts of common pleas
- 11 -
J-A29024-22
____________________________________________
(a) General rule. - Except as provided in subsection (b)
[(relating to appeals from court of common pleas cases within the
exclusive jurisdiction of our Supreme Court)], the Commonwealth
Court shall have exclusive jurisdiction of appeals from final
orders of the courts of common pleas in the following cases:
...
(4) Local government civil and criminal matters. –
(i) All actions or proceedings arising under any
municipality, institution district, public school,
planning or zoning code or under which a municipality
or other political subdivision or municipality authority
may be formed or incorporated or where is drawn in
question the application, interpretation or
enforcement of any:
(A) statute regulating the affairs of political
subdivisions, municipality and other local
authorities or other public corporations or of the
officers, employees or agents thereof, acting in
their official capacity;
...
(7) Immunity waiver matters. - Matters conducted pursuant
to Subchapter C of Chapter 85 (relating to actions against
local parties).
42 Pa.C.S.A. § 762(a)(4)(i)(A) and (7) (emphasis added).
Thus, pursuant to our statutory scheme, appeals from final orders of the
court of common pleas involving statutes regulating the affairs or general
operations of counties or potential immunity defenses available to counties
fall within the exclusive jurisdiction of the Commonwealth Court. Id.; see
also Wheatcroft v. Auritt, 312 A.2d 441, 446 (Pa. Super. 1973) (defining
“affairs of political subdivisions” to mean the “business” or “general
operations” of the political subdivision); 42 Pa.C.S.A. §§ 8541 - 8564
(pertaining to matters affecting government units – actions against local
parties); 42 Pa.C.S.A. § 8501 (defining “local party” or “local agency” as “[a]
- 12 -
J-A29024-22
____________________________________________
government unit other than the Commonwealth government”); 42 Pa.C.S.A.
§ 102 (defining “government unit” as including “any political subdivision”).
We acknowledge that this Court, in an en banc decision, held that appeals
from final orders of the court of common pleas involving substantive
matters enumerated in Section 762 are within the exclusive jurisdiction of
the Commonwealth Court, and such appeals, if filed with this Court or
transferred to this Court, must be transferred to the Commonwealth Court for
disposition. Mohn, supra. Our decision in Mohn, however, is distinguishable
from the case sub judice in that the orders on appeal in the instant case are
collateral orders involving evidentiary privileges afforded by the MHPA and the
Pennsylvania Drug and Alcohol Abuse Control Act, 71 P.S.
§§ 1690.101 - 1690.115, (“DAA”), as discussed more fully infra. These two
orders are not final orders involving substantive issues concerning one of the
seven subject matters enumerated in Section 762(a). Therefore, because the
appeal in the case sub judice has been perfected and the defendant-parties
do not contest this Court’s jurisdiction, we find, under these circumstances,
that this Court has discretion to retain jurisdiction or to transfer this case to
the Commonwealth Court. See Trumbull Corp. v. Boss Constr., Inc., 747
A.2d 395, 398-399 (Pa. Super. 2000); see also 42 Pa.C.S.A. § 704(a)
(stating, “[t]he failure of an appellee to file an objection to the jurisdiction of
an appellate court within such time as may be specified by general rule, shall,
unless the appellate court otherwise orders, operate to perfect the appellate
jurisdiction of such appellate court, notwithstanding any provision of this title,
or of any general rule adopted pursuant to section 503 (relating to
reassignment of matters), vesting jurisdiction of such appeal in another
appellate court”); 42 Pa.C.S.A. § 741(a) (stating, “[t]he 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”).
In determining whether to retain jurisdiction or transfer an appeal,
we balance the interests of the parties and matters of judicial
economy against other factors, including: (1) whether the case
has already been transferred; (2) whether retaining jurisdiction
will disrupt the legislatively ordained division of labor between the
intermediate appellate courts; and (3) whether there is a
possibility of establishing two conflicting lines of authority on a
- 13 -
J-A29024-22
____________________________________________
particular subject. We examine each potential transfer on a
case-by-case basis.
Smith, 152 A.3d at 1065 (citations and quotation marks omitted); see also
Trumbull, 747 A.2d at 399; Mohn, 218 A.3d at 934.
In the case sub judice, Appellant asserts that this Court has jurisdiction
pursuant to 42 Pa.C.S.A. § 742 (see Appellant’s Brief at 1), and the
defendant-parties did not object to this Court having jurisdiction over the
matter. Although Indiana County, at its request, was excused from oral
argument concerning Appellant’s appeal, the parties involved in the instant
appeal filed appellate briefs in this matter (Indiana County filed an appellee’s
brief, jointly with Attorney McKee). The issues on appeal, as discussed in
greater detail infra, surround the evidentiary protections afforded by the MHPA
and DAA. Our research reveals that issues involving the evidentiary
protections afforded by the MHPA and the DAA have been almost exclusively
reviewed by this Court. See e.g., Commonwealth v. Nuzzo, 284 A.3d 1243(Pa. Super. 2022); see also Gates v. Gates, 967 A.2d 1024 (Pa. Super.
2009); T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008); but see
Johnsonbaugh v. Dept. of Public Welfare, 665 A.2d 20 (Pa. Commw. Ct.
1995).
After much consideration, we decline to transfer this case to the
Commonwealth Court. Smith, 152 A.3d at 1065; see also Trumbull, 747
A.2d at 399. The interests of judicial economy, as well as the interests of the
parties, are best served by this Court retaining jurisdiction of this appeal.
Furthermore, our disposition herein will not disrupt the division of labor
between this Court and the Commonwealth Court, nor will it result in
conflicting lines of authority. Smith, 152 A.3d at 1065. Moreover, the issues
to be resolved in the instant appeal do not involve substantive matters
enumerated in Section 762. We advise the parties, however, that if Indiana
County remains a defendant-party, the ultimate resolution of this matter is
likely to involve, inter alia, an analysis and interpretation of statutes regulating
the general operations of Indiana County’s mental health treatment programs
and facilities (see generally 50 P.S. §§ 4301 - 4305), as well as its office of
public defender (see generally 16 P.S. §§ 9960.1 - 9960.13), and statutes
governing any possible immunity defenses afforded to Indiana County (see
e.g. 50 P.S. § 9114; see also 50 P.S. § 4603). As such, an appeal of a final
order in the case sub judice would properly lie with the Commonwealth Court
pursuant to Section 762. 42 Pa.C.S.A. § 762(a)(4)(i)(A) and (7).
- 14 -
J-A29024-22
Appellant’s issues, in toto, challenge the trial court’s orders that
compelled more complete responses and more expansive production of
documents related to his medical, mental health, and substance abuse
treatment records as part of the discovery proceedings in the pending action.12
Id. at 24-47. Appellant asserts that his mental health and substance abuse
treatment records are protected by Section 7111 of the MHPA13 and Section
____________________________________________
12Appellant concedes that the defendant-parties are entitled to receive copies
of his medical, mental health, and substance abuse treatment records
generated during the 30-day period prior to December 20, 2016. Appellant’s
Brief at 10, 27. As such, Appellant’s appeal is limited to a challenge of the
production of medical, mental health, and substance abuse treatment records
generated prior to the 30-day period leading up to December 20, 2016.
13 Section 7111 of the MHPA states as follows:
§ 7111. Confidentiality of records
(a) All documents concerning persons in treatment shall be kept
confidential and, without the person's written consent, may not be
released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to [50 P.S. § 7110];
(3) a court in the course of legal proceedings authorized by this
act;
(4) pursuant to Federal rules, statutes and regulations governing
disclosure of patient information where treatment is undertaken
in a Federal agency; and
(5) a covered entity or a covered entity's business associate that
makes the use, disclosure or request for disclosure in accordance
- 15 -
J-A29024-22
1690.108 of the DAA, which relates to the confidentiality of drug and alcohol
treatment records.14 Appellant’s Brief at 34.
____________________________________________
with [45 C.F.R. §§ 164.500 – 164.534] (relating to privacy of
individually identifiable health information).
In no event, however, shall privileged communications, whether
written or oral, be disclosed to anyone without such written
consent. This shall not restrict the collection and analysis of
clinical or statistical data by the department, the county
administrator[,] or the facility so long as the use and
dissemination of such data does not identify individual patients.
Nothing herein shall be construed to conflict with [Section
1690.108 of the Pennsylvania Drug and Alcohol Abuse Control Act,
71 P.S. 1690.108.]
(b) This section shall not restrict judges of the courts of common
pleas, mental health review officers[,] and county mental health
and mental retardation administrators from disclosing information
to the Pennsylvania State Police or the Pennsylvania State Police
from disclosing information to any person, in accordance with the
provisions of 18 Pa.C.S.[A.] § 6105(c)(4) (relating to persons not
to possess, use, manufacture, control, sell[,] or transfer firearms).
50 P.S. § 7111.
14 Section 1690.108 of the DAA, in pertinent part, states that “patient records
and all information contained therein relating to drug or alcohol abuse or drug
or alcohol dependence prepared or obtained by a private practitioner, hospital,
clinic, drug rehabilitation[,] or drug treatment center[,]” except patient
records of a federally assisted program, “shall remain confidential and may
not be disclosed without a patient's consent” and shall only be disclosed, upon
consent, to:
(i) to medical personnel exclusively for purposes of diagnosis and
treatment of the patient;
(ii) to the parent or legal guardian of a minor or any other
designee for which the patient has provided consent;
- 16 -
J-A29024-22
Generally, our standard of review for discovery orders is as follows:
In reviewing the propriety of a discovery order, our standard of
review is whether the trial court committed an abuse of discretion.
Abuse of discretion occurs if the trial court renders a judgment
that is manifestly unreasonable, arbitrary[,] or capricious; that
fails to apply the law; or that is motivated by partiality, prejudice,
bias[,] or ill-will.
Carlino East Brandywine, L.P. v. Brandywine Village Assoc., 260 A.3d
179, 195-196 (Pa. Super. 2021) (citations, quotation marks, and original
brackets omitted). When a challenge to a discovery order involves statutory
interpretation, however, we address the issue presented as a question of law
for which our standard of review is de novo and our scope of review is plenary.
Octave, 103 A.3d at 1259; see also Nuzzo, 284 A.3d at 1252.
Pennsylvania Rule of Civil Procedure 4003.1 sets forth a general
threshold for discovery of documents and information, in pertinent part, as
follows:
Rule 4003.1. Scope of Discovery Generally. Opinions and
Contentions
____________________________________________
(iii) to government or other officials exclusively for the purpose of
obtaining benefits due the patient as a result of his drug or alcohol
abuse or drug or alcohol dependence; or
(iv) to a covered entity or a covered entity's business associate
that makes the use, disclosure[,] or request for disclosure in
accordance with [45 C.F.R. §§ 164.500 – 164.534 (relating to
privacy of individually identifiable health care information reported
to health care clearinghouses)].
71 P.S. § 1690.108(c).
- 17 -
J-A29024-22
(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive
and Rule 4011, a party may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense
of any other party, including the existence, description, nature,
content, custody, condition[,] and location of any books,
documents, or other tangible things and the identity and location
of persons having knowledge of any discoverable matter.
(b) It is not ground for objection that the information sought will
be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence.
Pa.R.Civ.P. 4003.1; see also Cooper v. Schoffstall, 905 A.2d 482, 522 (Pa.
2006) (stating that, generally, a document or information is discoverable if
that document or information is “reasonably calculated to lead to the discovery
of admissible evidence”). In addition to the requirement that the document
or information be reasonably calculated to lead to the discovery of admissible
evidence, the document or information must not be subject to an evidentiary
privilege. Pa.R.Civ.P. 4003.1 (a).
Evidentiary privileges, such as the protections cited by Appellant and
afforded by the MHPA and the DAA, have been viewed by appellate courts “to
be in derogation of the search for truth and are generally disfavored for this
reason.” Octave, 103 A.3d at 1262. Therefore, such evidentiary privileges
are to be strictly construed. Id.; see also Nuzzo, 284 A.3d at 1252.
The confidentiality of patient records is the sine qua non of effective
treatment because it encourages patients “to offer information about
themselves freely and without suffering from fear of disclosure of one’s most
- 18 -
J-A29024-22
intimate expressions to others and the mistrust that the possibility of
disclosure would engender.” Octave, 103 A.3d at 1260, see also Zane v.
Friends Hosp., 836 A.2d 25, 33 (Pa. 2003); Nuzzo, 284 A.3d at 1250.
Absent an express waiver of confidentiality, i.e. a signed waiver,15 a finding of
implied waiver pertaining to treatment records is disfavored and has been
recognized by Pennsylvania courts in only one, limited circumstance – where
a plaintiff initiates a civil action and seeks to use a confidentiality privilege,
such as Section 7111 of the MHPA, to shield disclosure of treatment records
that the plaintiff could reasonably have foreseen would be placed directly at
issue by the cause of action. Octave, 103 A.3d at 1262; see also Kraus v.
Taylor, 710 A.2d 1142, 1144-1145 (Pa. Super. 1998) (finding, the
confidentiality privileges afforded by the MHPA and DAA were waived when
the plaintiff filed a personal injury lawsuit seeking damages for permanent
injury which placed his life expectancy at issue in the case), appeal dismissed
as improvidently granted, 743 A.2d 451 (Pa. 2000); Compare with Gallo v.
Conemaugh Health Sys., Inc., 114 A.3d 855, 862-863 (Pa. Super. 2015)
____________________________________________
15 When a confidentiality privilege has been waived, whether by express or
implied waiver, the purpose for which it has been waived is determinative of
the scope of that waiver. In re Fortieth Statewide Investigating Grand
Jury, 220 A.3d 558, 568 (Pa. 2019) (stating, “the fact that a privilege has
been narrowly waived for a discrete purpose counsels against construing it as
a general waiver for all unrelated purposes”). For example, an express waiver
of confidentiality for purpose of obtaining insurance coverage for treatment
does not constitute a general waiver but, rather, limits the disclosure to only
that information necessary to obtain insurance coverage and to only necessary
parties who must maintain the confidentiality of the information themselves.
- 19 -
J-A29024-22
(finding, the confidentiality of a defendant’s mental health records remained
protected because the defendant did not bring the lawsuit placing his mental
health at issue); see also Fortieth Statewide Investigating Grand Jury,
220 A.3d at 568 (declining to extend the holding announced in Octave,
concerning implied waiver, to a factual scenario where an individual, who
executed an express waiver form authorizing disclosure of treatment records
to certain parties but could not anticipate public disclosure, did not initiate the
grand jury proceedings into which he was drawn).
In Octave, supra, our Supreme Court explained that confidentiality
privileges are not absolute and the “privilege conferred must be balanced
against the countervailing interests in ensuring the fairness and integrity of
the judicial system.” Octave, 103 A.3d at 1261. The Octave Court held that
“a patient waives his[, or her,] confidentiality protections under the MHPA
where, judged by an objective standard, he[, or she,] knew or reasonably
should have known his[, or her,] mental health would be placed directly at
issue by filing [a] lawsuit.” Id. at 1262.
Octave involved an individual (Octave) who was struck by a vehicle.
Id. at 1256. Although Octave survived the incident, he later died as a result
of the injuries sustained. Id. at 1256 n.2. Octave’s wife filed a negligence
suit to recover for physical injuries incurred by her husband. Id. at 1256.
“[B]ased upon eyewitness reports, the [Pennsylvania] state police concluded
that [Octave] attempted to commit suicide by jumping under the [vehicle’s]
trailer.” Id. The defendant-driver asserted, as a defense, that Octave
- 20 -
J-A29024-22
“intentionally caused his own injuries by throwing himself under the [vehicle]
in an unsuccessful suicide attempt.” Id. at 1257.
Applying an objective standard, the Octave Court determined that
Octave’s wife “knew that by commencing suit and alleging [her husband’s]
physical injuries were caused by [the defendant’s] negligence,” she placed her
husband’s “mental health directly at issue as to causation” because there was
objective evidence that suggested her husband attempted to commit suicide
by jumping under the vehicle’s trailer. Id. at 1262-1263 and n.11. In
balancing the competing interest of ensuring a robust search for truth in the
adversarial process against the importance of maintaining confidentiality
privileges, the Octave Court found that the objective standard for finding
implied waiver of a confidentiality privilege was “met[, in that specific
instance,] solely because the state police issued a report, based on
disinterested eyewitness interviews, finding [Octave] attempted to commit
suicide by jumping under the [vehicle’s] trailer.” Id. at 1261, 1263. In so
holding, the Octave Court reasoned that allowing a plaintiff “to pursue a
negligence action while hiding behind a [confidentiality] privilege
claim - essentially wielding the legislature's intended shield as a
sword - would offend the most basic understanding of fairness and justice”
under the specific circumstances of that case. Id. at 1263. The Octave Court
further noted that there were no less-intrusive methods to obtain Octave’s
mental health records other than disclosure of the mental health records
because Octave was now deceased. Id. at 1263 n.10 (noting that a
- 21 -
J-A29024-22
psychological evaluation or interrogatories were not available as less-intrusive
means because Octave was deceased). In finding implied waiver of the
confidentiality privilege under the case-specific facts, the Octave Court urged
“courts to use great caution in accepting this form of [implied] waiver.” Id.
at 1262 n.8, 1263 (emphasis added) (stating, “[a]llowing a defendant to
initiate a fishing expedition into a plaintiff’s mental health records to explore
whether any information may be potentially relevant or contradictory to the
subject of the action would destroy the purpose of the” confidentiality
protections”).
In the case sub judice, we consider whether Appellant, by filing his third
amended complaint, impliedly waived the confidentiality privileges afforded to
him pursuant to the MHPA and the DAA, as set forth supra. For the following
reasons, we find that Appellant’s filing of his third amended complaint
constituted a limited waiver of the confidentiality privileges afforded to him by
the MHPA and the DAA pursuant to Octave and its progeny.16
Before examining the allegations contained in Appellant’s third amended
complaint, it is necessary to first review the trial court’s findings and rulings
in Appellant’s expungement proceeding related to his involuntary
____________________________________________
16 Although we treat the confidentiality privileges afforded by the MHPA and
the DAA in tandem for purpose of our discussion, we are cognizant that an
individual’s dependence on drugs or alcohol does not constitute a mental
illness under the MHPA. See 50 P.S. § 7102 (stating that, mental retardation,
senility, or alcohol or drug dependence shall not, of themselves, be deemed
to constitute mental illness).
- 22 -
J-A29024-22
commitments. In the expungement action, Appellant challenged “his
involuntary commitments under [Section 7302 and Section 7303 of the
MHPA].” Trial Court Opinion and Order (12250 CD 2016), 12/27/18, at 8,
10-12. “[Appellant argued] that his [Section 7303] commitment violated his
due process rights because he was denied legal counsel of his choice, forced
to proceed with a court-appointed public defender, and was denied the
opportunity to obtain a continuance [of the Section 7303 commitment
hearing].” Id. at 5. The trial court, in addressing Appellant’s Section 7303
commitment stated,
Here, the limited record available shows that [Appellant] desired
to have private representation, which he expressed multiple
times. Not only was he provided with an extremely minimal
amount of time to secure private counsel, he was only able to
briefly meet with his [court-appointed] counsel immediately
before the [commitment] hearing took place. [Appellant] testified
that his counsel did not prepare a defense and did not respond to
his inquires about a voluntary [] commitment, seek a continuance,
or request a review of the certification. There is no evidence that
counsel asked questions or objected to erroneous information
presented at the hearing. Furthermore, [Appellant] was restricted
from use of the telephone and had no opportunity to attempt to
retain private counsel to request a review of the certification. For
these reasons, the [trial c]ourt finds that [Appellant] was denied
the right to effective representation.
Id. at 7-8. The trial court also found that Section “7303(b)(2) requires a
record of the proceedings to be kept. While this need not be a stenographic
record, some record is required, and the absence of a record of [Appellant’s]
hearing violated this requirement.” Id. at 8. The trial court, upon “finding
that [Appellant’s] due process rights under the MHPA were violated,” vacated
- 23 -
J-A29024-22
Appellant’s involuntary commitment under Section 7303 and expunged all
records pertaining to that commitment. Id. This record makes clear that the
trial court expunged Appellant’s December 2016 involuntary commitment due
to various procedural deficiencies that occurred during the commitment
process. The trial court, however, did not address the underlying substantive
merit of Appellant’s Section 7303 commitment.
Regarding Appellant’s Section 7302 commitment, the trial court found
that “[t]he boxes on the [Section 7302] application [for involuntary
commitment] were checked to indicate that [Appellant] fit the criteria as
described in [Section] 7301(b)(1) [(relating to harm to others)] and [Section]
7301(b)(2)(ii) [(relating to harm to self by attempting suicide).]” Id. at 11.
The Section 7302 application was then used to obtain a warrant for the
emergency examination of Appellant pursuant to Section 7302 (a)(1). Id.;
see also 50 P.S. § 7302. The trial court, upon review, held that,
Based on the contents of the application that [was] used to secure
the warrant, the [trial c]ourt can find no basis for [the warrant’s]
issuance under [Section] 7301(b)(1), as the application does not
reference any threats to others by [Appellant]. Furthermore, the
[trial c]ourt does not find that the statements relating to
[Appellant’s] threats of harm to himself satisfy the requirements
for issuance of a warrant under [Section] 7301(b)(2)(ii). While
[Appellant] may have made comments in the past about killing
himself, particularly when intoxicated, these general threats were
not alleged to have occurred within the 30 days prior to [the
completion of the Section 7302 application.]
Trial Court Opinion and Order (12250 CD 2016), 12/27/18, at 11. After
concluding that the warrant for Appellant’s emergency examination was
- 24 -
J-A29024-22
improperly issued in violation of Appellant’s due process rights, the trial court
expunged Appellant’s Section 7302 commitment records. Id. at 12. In
granting Appellant’s request for the expungement of his Section 7302 and
Section 7303 commitment records, the trial court expressly found it
unnecessary to “examine the evidentiary sufficiency of the resulting
commitment.” Id.
With an understanding of Appellant’s prior expungement action, we turn
to a review of his third amended complaint. In the case sub judice, Appellant
argues that his causes of action, as set forth in his third amended complaint,
stem exclusively from the alleged procedural violations surrounding his
Section 7302 and Section 7303 commitments and do not involve an
examination of, or litigation surrounding, the substantive merit of his Section
7302 and Section 7303 commitments.17 An examination of Appellant’s third
amended complaint, however, reveals assertions that challenge both the
procedural and substantive merits of his Section 7302 and Section 7303
commitments. By way of example, the third amended complaint contains the
following allegations:
At no time during this period was [Appellant] severely mentally
disabled, as defined by law, nor did [Appellant] pose a clear and
present danger to himself or others.
____________________________________________
17Appellant argues that “whether [he] should have been . . . involuntarily
committed has no bearing on whether [his due process] rights were violated
during the commitment process[.]” Appellant’s Brief at 26 (emphasis
omitted).
- 25 -
J-A29024-22
Instead, the [Section 7303] commitment was improperly used to
force [Appellant] into treatment for his alcohol use [and] for the
convenience of the [defendant-parties] and their holiday and
vacation plans.
Third Amended Complaint, 12/12/19, at ¶¶104 and 105 (“Facts of Case”).18
As a proximate result of [defendant-parties’ (IRMC, BDHP, and
Cline)] gross negligence and willful misconduct [Appellant] was
held against his will and [deprived of] his rights [] for several days.
Id. at ¶217 (Count IV – gross negligence claim).
As a result of [Attorney McKee’s] gross negligence and failure to
adhere to professional standards, [Appellant] was held against his
will for several days.
Id. at ¶225 (Count V – legal malpractice).
As a proximate result of IRMC, Bivens, and Dr. Buzogany’s
professional and gross negligence and failure to adhere to
professional standards and the MHPA, [Appellant] was held
against his will for several days.
Id. at ¶251 (Count VI – professional malpractice).
In claiming entitlement to damages for wrongful commitment and
alleging, inter alia, that he was not severely mentally disabled or a threat to
himself or others, Appellant placed the state of his mental health at the time
of his involuntary commitment directly at issue and thereby triggered his
obligation to disclose his mental health treatment records concerning prior
____________________________________________
18 A similar allegation was repeated at paragraph 246 of the third amended
complaint, as follows, “[Appellant] was not severely mentally disabled and/or
a clear and present danger to himself and others, as required by the MHPA.”
Third Amended Complaint, 12/12/19, at ¶246.
- 26 -
J-A29024-22
suicide attempts and suicidal ideations.19 Octave, 103 A.3d at 1262.
Specifically, based upon Appellant’s allegations that he was “held against his
will for several days” for no reason other than as a result of the
defendant-parties’ violation of this constitutional and due process rights, as
well as their gross negligence and legal and medical malpractice, it was
reasonably foreseeable that the defendant-parties would challenge these
allegations by seeking to demonstrate that Appellant’s involuntary
commitments under Section 7302 and Section 7303 were justified because
Appellant was severely mentally disabled and in need of immediate and
continued mental health treatment pursuant to the MPHA.20 In other words,
by asserting claims of medical malpractice and legal malpractice, and by
claiming he was not mentally disabled and did not pose a danger to himself
or others, Appellant placed at issue his mental health and substance abuse
treatment history, at least insofar as those treatment records involve prior
attempts at suicide, prior threats of suicide with actions taken in furtherance
____________________________________________
19 Because Appellant’s involuntary commitment was not definitively
determined to be unjustified in accord with the MPHA in the expungement
action, the validity of the involuntary commitment reasonably remains a
possible defense in the current cause of action.
20It is also reasonably foreseeable that the defendant-parties might also need
Appellant’s mental health and substance abuse treatment records to
demonstrate that they cannot be held liable under Section 7114 because they
did not engage in willful misconduct or gross negligence, even if certain
procedural deficiencies occurred.
- 27 -
J-A29024-22
thereof, or prior treatment involving suicidal ideation. See 50 P.S.
§ 7301(b)(2)(ii).
As such, we concur with the trial court that Appellant impliedly waived
the evidentiary privileges afforded by the MHPA and the DAA pursuant to
Octave, supra, and its progeny, based on certain allegations and causes of
action contained in his third amended complaint. We now examine the scope
of that waiver to determine whether the trial court erred in ordering Appellant
to produce his medical, mental health, and substance abuse treatment records
as set forth in the March 10, 2020 orders.
To reiterate, when a confidentiality privilege has been impliedly waived,
the purpose for which it has been waived is determinative of the scope of that
waiver. In re Fortieth Statewide Investigating Grand Jury, 220 A.3d at
568. In the case sub judice, Appellant impliedly waived the evidentiary
privileges protecting his mental health and substance abuse treatment records
for the purpose of determining the validity of Appellant’s commitment under
Section 7302 and Section 7303 of the MHPA. Therefore, we must examine
whether the March 10, 2022 orders required disclosure of medical, mental
health, and substance abuse treatment records which exceeded the scope of
claims Appellant placed at issue in filing this action.
A determination of whether Appellant’s involuntary commitment was
justified, under Section 7302 and Section 7303, and, as such, could serve as
a possible defense by the defendant-parties, would involve an analysis of the
information that was known by Dr. Buzogany, at the time he approved the
- 28 -
J-A29024-22
Section 7302 immediate involuntary commitment, or by the mental health
review officer, at the time he or she certified the Section 7303 extended
involuntary commitment. Therefore, the discovery of any documents or
information pertaining to Appellant’s prior mental health and substance abuse
treatment that specifically and directly relate to prior attempts at suicide,
threats of suicide with acts in furtherance thereof, or of suicidal ideation, is
reasonably calculated to lead to admissible evidence that was known by Dr.
Buzogany, at the time of the Section 7302 involuntary commitment, or by the
mental health review officer, as presented at the Section 7303 hearing. As
such, having concluded that Appellant impliedly waived the evidentiary
privileges afforded by the MHPA and DAA by virtue of the allegations contained
in his third amended complaint, we find the scope of that waiver pertains to
any documents or information related to Appellant’s prior mental health and
substance abuse treatment that specifically and directly involved
Appellant’s prior attempts at suicide, prior threats of suicide coupled with acts
in furtherance thereof, and prior instances involving suicidal ideation and may
have been known, or relied on, by Dr. Buzogany or the mental health review
officer in authorizing Appellant’s involuntary commitments under Section 7302
and Section 7303.
In filing his third amended complaint, Appellant placed at issue his
mental health status, particularly his suicidal ideations as of December 2016.
For these reasons, we affirm the trial court’s March 20, 2022 orders.
Nevertheless, we are aware of the distinct possibility that many of the
- 29 -
J-A29024-22
documents subject to disclosure under the trial court’s orders may fall outside
the scope of the implied waiver of the confidentiality privileges afforded by the
MHPA and DAA. As stated supra, the implied waiver is strictly limited to those
documents and information relating to Appellant’s mental health and
substance abuse treatment that specifically and directly involve treatment
for prior instances of suicidal ideation, including prior attempted suicide or
prior threats of suicide coupled with overt acts in furtherance thereof.
Moreover, while we do not find an abuse of discretion in permitting disclosure
of records for the three or five years prior to December 19, 2016,21 or the
requirement that the records be submitted to the trial court for an in-camera
review to determine whether such records should be disclosed, we find the
trial court needed to put in place certain additional guidelines, as well as
practices and procedures, concerning the use, retention, reproduction, and
further disclosure of such records by the defendant-parties. In other words,
guidelines and practices and procedures should be established by the trial
court that track the production of documents and information; restrict who
has access to the disclosed information, i.e., only the defendant-parties
involved in the motions to compel and their counsel; how the challenged
information may be used in future pleadings and procedures, including court
____________________________________________
21 In the case of Dr. Buzogany’s motion to compel, the trial court limited the
disclosure to the five years prior to December 19, 2016. In the case of
McKee’s motion to compel, the trial court limited the disclosure to the 3 years
prior to December 19, 2016.
- 30 -
J-A29024-22
filings and depositions in the case sub judice, i.e., should the parties be
required to petition the trial court to place certain portions of the record under
seal; and what consequences or sanctions should be in place if a
defendant-party fails to maintain the confidentiality of such records. We leave
these decisions to the trial court in the first instance.
Consequently, for the reasons set forth herein, we affirm the March 10,
2022 orders (Trial Court Order (Buzogany) and Trial Court Order (McKee)).
We remand this case with the instruction that the trial court supplement these
orders with orders that set forth specific guidelines and practices and
procedures to safe-guard the disclosed information in accordance with this
memorandum.
March 10, 2022 Order (Trial Court Order (Buzogany)) affirmed. March
10, 2022 Order (Trial Court Order (McKee)) affirmed. Case remanded with
instructions to supplement the March 10, 2022 orders. Appellant’s Motion to
Strike Supplemental Reproduced Record granted. Jurisdiction relinquished.
President Judge Emeritus Bender joins.
Judge Kunselman files a Dissenting Memorandum.
- 31 -
J-A29024-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2023
- 32 -