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.


                                        -2-
J-A25037-16


     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[.]


                                    -3-
J-A25037-16



            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.”


                                      -4-
J-A25037-16


      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


                                       -5-
J-A25037-16


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.

                                     ***



                                     -6-
J-A25037-16


              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


                                     -7-
J-A25037-16


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:


                                     -8-
J-A25037-16


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


                                     -9-
J-A25037-16


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).



                                      - 10 -
J-A25037-16


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).



                                     - 11 -
J-A25037-16


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




                                     - 12 -
J-A25037-16


“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



                                    - 13 -
J-A25037-16


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



                                    - 14 -
J-A25037-16


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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J-A25037-16


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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J-A25037-16


      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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J-A25037-16


      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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