J-A17033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL RENFER AND DANA RENFER,                      IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellees

                       v.

STEVEN PETER KOPENA,

                            Appellant                     No. 3554 EDA 2016


                Appeal from the Order Entered October 21, 2016
                 in the Court of Common Pleas of Bucks County
                        Civil Division at No.: 2015-08506


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED SEPTEMBER 27, 2017

        Appellant, Steven Peter Kopena, appeals from the trial court’s order

granting the motion to compel the deposition of Dr. Joseph Pinciotti, D.O.,

and the motion for sanctions filed by Appellees, Michael and Dana Renfer.

We affirm the portion of the court’s order compelling the deposition, and

dismiss this appeal as it relates to sanctions, as interlocutory.

        We take the relevant facts and procedural history of this case from the

trial court’s February 14, 2017 opinion and our independent review of the

certified record.    This case arises from a February 2, 2015, motor vehicle

accident during which Appellant struck Appellees’ car from behind, pushing it

forward into another vehicle.           Police administered field sobriety tests to

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A17033-17



Appellant at the scene of the accident because of his slightly slurred speech.

He was able to perform the tests, and no driving under the influence charges

were brought against him.

      Appellees filed a complaint on December 11, 2015, and an amended

complaint on January 12, 2016, alleging that Mr. Renfer sustained injuries,

including lumbar and thoracic strains, due to Appellant’s negligence.     The

amended complaint also sought punitive damages, claiming that Appellant

recklessly operated his vehicle at a high speed while under the influence

drugs, alcohol, and/or medication.    On January 28, 2016, Appellant filed

preliminary objections seeking to strike Appellees’ request for punitive

damages, which the trial court overruled.

      In January of 2016, in response to written interrogatories, Appellant

averred that he ingested a narcotic prescription medication, Suboxone,

within the forty-eight hours preceding the accident, for treatment of his knee

pain. In March of 2016, Appellees obtained Appellant’s medical records from

his treating physician, Dr. Pinciotti, without any objection.   However, after

Appellees’ attempts to set a mutually convenient time and place for Dr.

Pinciotti’s oral deposition were unsuccessful, they issued a subpoena on July

16, 2016 for him to appear for deposition.

      On August 16, 2016, two days before the scheduled deposition,

Appellant filed a motion for a protective order, alleging that he had a valid

prescription for Suboxone, that he was prescribed the medication to manage

chronic knee pain, and that an investigation into his medical history was

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unwarranted. On August 18, 2016, Appellant, his counsel, and Dr. Pinciotti

failed to attend the deposition.

       On August 26, 2016, Appellees filed a motion to compel discovery and

for sanctions, requesting that the court issue an order compelling Dr.

Pinciotti’s deposition, and that it impose appropriate sanctions for the failure

to attend it. The court held a hearing on the matter on October 21, 2016,

and granted Appellees’ motion to compel the deposition. The court denied

Appellant’s motion for a protective order, and ordered him to pay $3,225.00

in counsel fees and court costs to Appellees.      The court further provided:

“[Appellees’] [d]iscovery is limited to medical records related only to

[Appellant’s] use of Suboxone, and Dr. Pinciotti’s prescribing [of] that drug.”

(Order, 10/21/16). Appellant filed a motion for reconsideration on October

28, 2016, which the trial court denied.1 This timely appeal followed.2

       Appellant raises the following issues for our review:

       A. Did the trial court err in denying [Appellant’s] motion for
       protective order and ordering the deposition of Dr. Joseph
       Pinciotti?

       B. Shall [Appellees] be permitted to use the deposition of Dr.
       Pinciotti in any further hearings relating to the instant matter?

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1
 Dr. Pinciotti was deposed on November 7, 2016. (See Trial Court Opinion,
2/14/17, at 8; Deposition of Dr. Joseph Pinciotti, 11/07/16).
2
 Appellant filed a court-ordered concise statement of errors complained of
on appeal on December 20, 2016. The court entered an opinion on February
14, 2017. See Pa.R.A.P. 1925.



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       C. Shall [Appellees] be permitted to conduct further discovery
       into [Appellant’s] medical history?

       D. Did the       trial   court   err    in   ordering   sanctions    against
       [Appellant]?

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).3

       Preliminarily, we must address the propriety of this appeal. As noted,

Appellant challenges the trial court’s order of Dr. Pinciotti’s deposition, and

its imposition of sanctions. However, the trial court and Appellees maintain

that this is an improper appeal from an interlocutory, non-final discovery

order.   (See Trial Ct. Op., at 5; Appellees’ Brief, at 14).               We agree with

them, in part.

       “As a general rule, an appellate court’s jurisdiction extends only to

review of final orders.” Oliver v. Irvello, 2017 WL 2544994 at *1 n.1 (Pa.

Super. filed June 13, 2017) (citing Pa.R.A.P. 341(a) (“. . . an appeal may be

taken as of right from any final order of a . . . trial court.”)) (case citation

omitted).    “[I]n general, discovery orders are not final, and are therefore

unappealable.”      T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super.

2008) (citation omitted).        With respect to sanctions, “[d]iscovery sanction

orders are interlocutory and not appealable until final judgment in the

underlying action.”      Baranowski v. Am. Multi-Cinema, Inc., 688 A.2d

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3
  Although Appellant purports to raise four separate issues in the statement
of the questions involved section of his brief, he fails to develop them as
such in the argument section, in violation of our appellate rules. See
Pa.R.A.P. 2116(a), 2119(a); (see also Appellant’s Brief, at 3, 9-18).



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207, 208 n.1 (Pa. Super. 1997), appeal denied, 704 A.2d 633 (Pa. 1997)

(citation omitted).     Accordingly, we lack jurisdiction to address Appellant’s

challenge to the trial court’s imposition of sanctions.     See id.; see also

Pa.R.A.P 341(a). We therefore dismiss this appeal, in part.

       Appellant’s remaining claims concern information relating to Dr.

Pinciotti, which he argues is subject to privilege. (See Appellant’s Brief, at

9-13). With regard to claims of privilege, this Court has stated:

             . . . The courts of Pennsylvania have uniformly held that, if
       an appellant asserts that the trial court has ordered him to
       produce materials that are privileged, then Rule 313 applies.[4] .
       . . When a party is ordered to produce materials purportedly
       subject to a privilege, we have jurisdiction under Pa.R.A.P.
       313[.]

              . . . [W]hen a trial court refuses to apply a claimed
       privilege, the decision is appealable as a collateral order. . . .

Farrell v. Regola, 150 A.3d 87, 95 (Pa. Super. 2016), appeal denied, 2017

WL 1397525 (Pa. filed Apr. 18, 2017) (emphasis in original; case citations

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4
  Pennsylvania Rule of Appellate Procedure 313 sets forth the requirements
for a collateral order and provides:

       (a) General rule. An appeal may be taken as of right from a
       collateral order of an administrative agency or lower court.

       (b) Definition. 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.

Pa.R.A.P. 313(a)-(b).



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and quotation marks omitted). We therefore conclude that we have limited

jurisdiction over this appeal, and will address Appellant’s claims only to the

extent they concern his assertion of privilege. See id.

       The crux of Appellant’s issue on appeal5 is that the trial court

improperly compelled Dr. Pinciotti’s deposition, because information relating

to his Suboxone use is subject to the physician-patient privilege.               (See

Appellant’s Brief, at 9-10). Appellant contends that the suggestion that he

may have been addicted to an opioid tends to blacken his character, and

discovery is therefore precluded by statute (42 Pa.C.S.A. § 5929).               (See

id.). This issue does not merit relief.

       Our standard of review is as follows. “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.”          Kelley v. Pittman, 150 A.3d 59, 63 (Pa.

Super. 2016) (citations omitted).              “[T]he interpretation of a statute is a

question of law, resulting in a standard of review that is de novo and a scope

of review that is plenary.” Farrell, supra at 96 (citation omitted).

       In Pennsylvania, the physician-patient privilege is codified at Section

5929 of the Judicial Code, which provides:



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5
  In light of our limited jurisdiction and Appellant’s defective brief, we treat
his arguments concerning privilege as a single issue. (See supra, at 4 n.3).



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      No physician shall be allowed, in any civil matter, to disclose any
      information which he acquired in attending the patient in a
      professional capacity, and which was necessary to enable him to
      act in that capacity, which shall tend to blacken the character of
      the patient, without consent of said patient, except in civil
      matters brought by such patient, for damages on account of
      personal injuries.

42 Pa.C.S.A. § 5929.

             Regarding the statute, our case law has drawn a distinction
      between information learned by a physician through
      communication to him by a patient and information acquired
      through examination and observation. The distinction originates
      in the rationale of the statute which was designed to create a
      confidential atmosphere in which a patient will feel free to
      disclose all possible information which may be useful in
      rendering appropriate treatment. Therefore, the privilege is
      limited to information which would offend the rationale of the
      privilege.    Hence, a doctor must not expose a patient’s
      communications if doing so would release confidential
      information which was acquired in attending to and treating the
      patient and which would blacken the character of the patient.
      See 42 Pa.C.S. § 5929; see also In Re June 1979 Allegheny
      County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73
      at 77 (concluding that the privilege is limited to “information
      directly related to the patient’s communication and thus tending
      to expose it.”); see generally Commonwealth v. Carter, 821
      A.2d 601, 608 (Pa. Super. 2003) (“The [psychiatrist-patient]
      privilege is not designed to specifically protect the
      psychotherapist’s own opinion, observations, [or] diagnosis.”)

Grimminger v. Maitra, 887 A.2d 276, 279–80 (Pa. Super. 2005), appeal

denied, 906 A.2d 1197 (Pa. 2006) (most case citations and quotation marks

omitted); see also Jones v. Faust, 852 A.2d 1201, 1205 (Pa. Super. 2004)

(“[T]he privilege is limited to information which would offend the rationale of

the   privilege,   i.e.,   information    directly   relating   to   the   patient’s

communication and thus tending to expose it.”) (citation omitted).



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      Pennsylvania courts have generally “read the phrase ‘tend to blacken

the character of the patient’ narrowly.”        Miller Oral Surgery, Inc. v.

Dinello, 611 A.2d 232, 236 (Pa. Super. 1992), appeal denied, 624 A.2d 111

(Pa. 1993) (citation omitted); see also Grimminger, supra at 280

(“Blackening of the character results from testimony concerning a loathsome

disease.”) (citation omitted).

      Here, the trial court concluded that the information regarding

Appellant’s Suboxone use did not qualify as a “communication” that tended

to “blacken[] the character” of Appellant, and therefore was not privileged.

(Trial Ct. Op., at 5). Upon review, we agree.

      Specifically, the record reflects that Appellant had a valid prescription

for Suboxone from Dr. Pinciotti for the treatment of chronic knee pain, and

that he ingested the prescribed dosage in the hours before the accident.

(See Kopena Exhibit 1; see also Deposition of Dr. Pinciotti, at 28, 30;

Appellant’s Motion for Protective Order, 8/16/16, at unnumbered page 2).

The trial court carefully limited the scope of medical discovery to Appellant’s

use of Suboxone, and Dr. Pinciotti’s prescribing of that drug, to avoid an

assertion of privilege. (See Order, 10/21/16; Trial Ct. Op., at 5). Thus, the

information at issue does not appear to tarnish Appellant’s character or

involve the disclosure of patient communication at all.    See Grimminger,

supra at 279-80. Because we discern no abuse of discretion or error of law

with respect to the trial court’s decision regarding Appellant’s claim of

privilege, we affirm the relevant portion of its order.

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J-A17033-17



     Order affirmed in part. Appeal dismissed in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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