J-A06039-20

                                   2020 PA Super 71


    BRIANNA PASQUINI                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FAIRMOUNT BEHAVIORAL HEALTH                :
    SYSTEM & UHS OF FAIRMOUNT,                 :
    INC.                                       :   No. 2017 EDA 2019
                                               :
                       Appellants

                  Appeal from the Order Entered May 14, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                              No(s): 170802950


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                        March 25, 2020

        Fairmount Behavioral Health System & UHS of Fairmount, Inc.

(Appellants) appeal from the Order entered on May 14, 2019, in the Court of

Common Pleas of Philadelphia County granting Brianna Pasquini’s (Appellee)

Motion to Strike Objections to Requests for Admission and requiring Appellants

to admit or deny whether they knew a non-party patient was a registered sex

offender in January of 2016. After careful review, we affirm.

        The trial court set forth the relevant procedural history herein as follows:

               PROCEDURAL HISTORY
               On August 29, 2017, [Appellee] filed the instant litigation
        alleging a personal injury action arising out of the preventable
        rape and sexual assault suffered by Appellee while she was
        receiving inpatient addiction treatment at [Appellants’] facility.
        Appellee alleges in January, 2016, she was raped and assaulted
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06039-20


       by Montezz Hewlett, a fellow patient at the facility who, at the
       time, had a documented history of violent sexual crimes- including
       a rape conviction- and was a registered sex offender. Appellee
       alleges that Appellants knew or should have known of Hewlett's
       history and sex offender status, yet they allowed him unfettered
       and unmonitored access to Appellee, resulting in her rape and
       sexual assault.
              While conducting discovery, Appellee served a request for
       admissions stating: “It is admitted that Defendant, Fairmont
       Behavioral Health System, knew that Mr. Hewlett was a convicted
       sex offender in January 2016.” Mr. Hewlett's status as a sex
       offender is publicly available information via the internet due to
       the requirements of Pennsylvania's Registration of Sexual
       Offenders Act (“Megan's Law”), 42 Pa.C.S.A. §9799.10, et seq.
       Appellants objected, claiming that the information sought was
       “privileged” because Hewlett was a patient at their facility.
       Appellee moved to strike this objection, noting the request sought
       Appellants’ knowledge of publicly available information.
              Following briefing and oral argument before this [c]ourt,
       Appellee’s motion to strike Appellants’ objection was granted,
       requiring Appellants to respond to the request for admission.
       Appellants, in response, filed a motion for reconsideration, or in
       the alternative, certification to appeal the May 14, 2019 Order.
       Appellants also filed two motions seeking to stay the case.
       Appellants argued that responding to the request would require
       disclosing privileged information about Hewlett, therefore, the
       Order should be vacated. This [c]ourt denied all of Appellants’
       motions.
              On June 12, 2019, Appellants filed a Notice of Appeal,
       claiming the May 14 order is collateral under Pa.R.A.P. 313(b)
       because it violates the confidentiality provisions of the Mental
       Health Procedures Act, 50 P.S. §7101, et seq. and the psychiatrist
       -patient privilege. Subsequently the Superior Court denied
       Appellee's Motion to Quash.[1]
____________________________________________


1  The trial court’s assertion is partially correct. On August 5, 2019, Appellee
filed her Application to Quash with this Court, and Appellants answered the
Application on August 19, 2019. In a Per Curiam Order entered on September
6, 2019, this Court denied Appellee’s motion to quash without prejudice to
Appellee’s right to raise the issue again in her appellate brief or in a new
application that may be filed after the appeal has been assigned to a merits
panel. Appellee has not done so.


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Trial Court Opinion, filed 9/26/19, at 1-2.

       On July 8, 2019, Appellants filed their Concise Statement of Errors

Complained of on Appeal which is a four-page narrative. Therein, Appellants

contend they cannot readily discern the basis for the trial court’s decision, and

therefore, they “generally challenge” the court’s finding that they must

respond to Appellee’s request for admission at issue. Concise Statement of

Errors Complained of on Appeal, 7/8/19, at 2. Appellants further state that

“this statement of errors includes every subsidiary issue [Appellants] raised

in [their] Response to Appellee’s Motion to Strike and in [their] Motion for

Reconsideration submitted following the entry of the May 14, 2019, Order.”

Id.2   On September 26, 2019, the trial court filed is Opinion pursuant to

Pa.R.A.P. 1925(a).

____________________________________________


2 In light of Appellants’ deficient concise statement, we could find any claims
raised on appeal waived for failure to present them properly in the concise
statement in violation of the Pennsylvania Rules of Appellate Procedure. As
this Court recently stated:

       [I]ssues not raised in a Rule 1925(b) statement will be deemed
       waived for review. An appellant's concise statement must properly
       specify the error to be addressed on appeal. In other words, the
       Rule 1925(b) statement must be “specific enough for the trial
       court to identify and address the issue [an appellant] wishe[s] to
       raise on appeal.” Commonwealth v. Reeves, 907 A.2d 1, 2
       (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956
       (2007). “[A] [c]oncise [s]tatement which is too vague to allow the
       court to identify the issues raised on appeal is the functional
       equivalent of no [c]oncise [s]tatement at all.” Id. The court's
       review and legal analysis can be fatally impaired when the court



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J-A06039-20


       In their brief, Appellants present the following Statement of the

Questions Involved:

              1. Does a request for admission asking a mental health
                 treatment provider to reveal information learned from a
                 patient during treatment violate the Pennsylvania
                 psychotherapist-patient privilege, 42 PA. STAT. AND CONS.
                 STAT. ANN.§ 5944 (West 2019)?

              2. Does a request for admission asking a party to reveal the
                 contents of privileged medical records violate the
                 Pennsylvania Mental Health Procedures Act, 50 PA. STAT.
                 AND CONS. STAT. ANN. § 7111 (West 2019)?

Brief of Appellants at 3.

       It is axiomatic that “[a]n appeal lies only from a final order, unless

permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471

(Pa.Super. 2013). As previously noted, this Court’s September 6, 2019, Per


____________________________________________


       has to guess at the issues raised. Thus, if a concise statement is
       too vague, the court may find waiver. Commonwealth v. Scott,
       212 A.3d 1094, 1112 (Pa.Super. 2019) (citation omitted).

Commonwealth v. Sexton, 2019 WL 5540999, at *4 n. 3 (Pa.Super. Oct.
28, 2019).

      Herein, Appellants’ inarticulate framing of their concise statement and
attempt to incorporate “subsidiary issues” arguably resulted in a concise
statement that is not specific enough for the trial court to identify and consider
the related issues Appellants have raised on appeal. However, because this
has not fatally impaired the trial court's legal analysis in its Rule 1925(a)
Opinion, we will not deem the two issues Appellants include in their appellate
brief to be waived for failure to preserve them properly in the concise
statement.




                                           -4-
J-A06039-20


Curiam Order, denied Appellee’s motion to quash the instant appeal without

prejudice to her right to raise again the issue before the merits panel.

Although Appellee has not done so, “since we lack jurisdiction over an

unappealable order it is incumbent on us to determine, sua sponte when

necessary, whether the appeal is taken from an appealable order.” Gunn v.

Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505, 508 (Pa.

Super. 2009) (internal citation and quotation marks omitted). Thus, we begin

by addressing whether we possess jurisdiction to review the trial court's order.

        In order to be appealable, an order must be a final order, Pa.R.A.P. 341-

42; an interlocutory order appealable by right or permission, 42 Pa.C.S.A. §

702(a)-(b), Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313.3 When

considering the appealability of a discovery order concerning one’s mental

health records and a report pertaining thereto, this Court recently stated:

              “The courts of Pennsylvania have uniformly held that, if an
        appellant asserts that the trial court has ordered him [or her] to
        produce materials that are privileged, then Rule 313 applies.”
        Farrell v. Regola, 150 A.3d 87, 95 (Pa.Super. 2016), citing
        Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1016 n. 1
____________________________________________


3   Pa.R.A.P. 313 provides as follows:

        (a)   General rule. An appeal may be taken as of right from a collateral
              order of an administrative agency of 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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J-A06039-20


      (Pa.Super. 2015) (“When a party is ordered to produce materials
      purportedly subject to a privilege, we have jurisdiction under
      Pa.R.A.P. 313….”), Ben v. Schwartz, 729 A.2d 547, 549 (Pa.
      1999) (holding that when a trial court refuses to apply a claimed
      privilege, the decision is appealable as a collateral order, and
      Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011)
      (distinguishing federal law and reaffirming Pennsylvania law that
      “orders overruling claims of privilege and requiring disclosure are
      immediately appealable under Pa.R.A.P. 313”). Based on the
      foregoing, it is clear that this order is appealable as a collateral
      order.

Commonwealth v. Segarra appeal of: Complainant Witness, D.G., a

minor, 2020 WL 611132, at * 3 (Pa.Super. Feb. 10, 2020).

      Applying the above analysis to the case at bar, we reach the same

conclusion. We are able to examine the issues of privilege raised by Appellants

without analyzing the underlying issues in the case, i.e. Appellants’ alleged

negligence, gross negligence, carelessness and recklessness.        In addition,

Appellants allege the requested material is subject to various privileges and

that the potential revelation of this sensitive mental health information

implicates the “importance” prong of the collateral order doctrine, as such

privacy rights are deeply rooted in public policy. Finally, our failure to review

the propriety of the trial court’s discovery order at this juncture would result

in Appellants’ claim of privilege being irreparably lost, as they could be forced

to disclose sensitive information in conformance with the trial court’s discovery

order, and such compliance could not be undone in a subsequent appeal. See

T.M. v. Elwyn, Inc., 950 A.2d 1050, 1058 (Pa.Super. 2008).




                                      -6-
J-A06039-20


       Having determined that the requirements of the collateral order doctrine

have been met and that this Court has jurisdiction over this appeal, we now

proceed to examine the issues Appellants have raised.        “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.” Id.

       Appellants contend the trial court’s May 14, 2019, Order requires them

“to disclose [their] knowledge of information obtained from a non-party

patient in furtherance of providing mental health treatment to him.” Brief for

Appellants at 8. Appellants urge this Court to reverse based on either the

“psychotherapist-patient privilege,” 42 Pa.C.S.A. § 59444 or the “Pennsylvania

____________________________________________


4

       [T]he psychiatrist/psychologist-patient privilege is absolute and
       the     statute   contains   no     exceptions    for   disclosure.
       Commonwealth v. Kyle, 533 A.2d 120, 125 (Pa. Super. 1987);
       42 Pa.C.S. § 5944. The privilege “is designed to protect
       confidential communications made and information given by the
       client to the psychotherapist in the course of treatment, but does
       not protect the psychotherapist’s own opinion, observations,
       diagnosis, or treatment alternatives.” Farrell, 150 A.3d at 97-98
       (citation and internal quotation marks omitted). Segarra is
       attempting to uncover statements D.G. made during the course of
       her mental health treatment at the Horsham Clinic, “which falls
       squarely within the parameters of the privilege.” Id. at 98.
              The privilege applies not only to psychiatrists and
       psychologists, but to any member of a patient’s treatment team.
       Id. at 100, quoting Commonwealth v. Simmons, 719 A.2d 336,
       343 (Pa. Super. 1998) (“[A]ny oral communication by [patient] in
       private to any member of the treatment team and used by the
       team for the purpose of psychotherapeutic evaluation is



                                           -7-
J-A06039-20


Mental Health Procedures Act” (MHPA), 50 P.S. § 7111.5 Id.          In this regard,

the Pennsylvania Supreme Court has recognized that:

____________________________________________


       privileged. Additionally, any reference to such a communication in
       [the facility’s] files is privileged as well.”) (emphasis in original).
              Moreover, “[i]n cases where the [section] 5944 privilege has
       been found to apply, case law has precluded material from being
       subjected to even in camera review by the trial courts[.]”
       Simmons, 719 A.2d at 341; see also Kyle, 533 A.2d at 131
       (“Subjecting the confidential file to in camera review by the trial
       court (as well as the appellate courts and staff members) would
       jeopardize the treatment process and undermine the public
       interests supporting the privilege. Simply stated, an absolute
       privilege of this type and in these circumstances requires absolute
       confidentiality.”).

Segarra, supra, at * 7.


5    [T]he MHPA is to be strictly construed. Commonwealth v. Moyer,
       595 A.2d 1177, 1179 (Pa. Super. 1991). Section 7103 of the MHPA
       specifies that “[t]his act establishes rights and procedures for all
       involuntary treatment of mentally ill persons, whether inpatient or
       outpatient, and for all voluntary inpatient treatment of mentally ill
       persons.” 50 P.S. § 7103. Section 7103.1 defines “inpatient
       treatment” as “[a]ll treatment that requires full or part-time
       residence in a facility.” Id. § 7103.1 “Facility” is defined as “[a]
       mental health establishment, hospital, clinic, institution, center,
       day care center, base service unit, community mental health
       center, or part thereof, that provides for the diagnosis, treatment,
       care or rehabilitation of mentally ill persons, whether as
       outpatients or inpatients.” Id.
             Section 7111 of the MHPA “mandates that all documentation
       concerning persons in treatment be kept confidential, in the
       absence of patient consent, except in four limited circumstances.”
       Zane v. Friends Hosp., 836 A.2d 25, 31 (Pa. 2003); see also
       In re Fortieth Statewide Investigating Grand Jury, 220 A.3d
       558, 566-67 (Pa. 2019). Section 7111 provides as follows.
            (a) All documents concerning persons in treatment shall
            be kept confidential and, without the person’s written



                                           -8-
J-A06039-20


       “evidentiary privileges are not favored.” Commonwealth v.
       Stewart, 547 Pa. 277, 690 A.2d 195, 197 (1997) (observing
       “[e]xceptions to the demand for every man's evidence are not
       lightly created nor expansively construed, for they are in
       derogation of the search for truth.”). Courts should permit
       utilization of an evidentiary privilege “only to the very limited
       extent that ... excluding relevant evidence has a public good
       transcending the normally predominant principle of utilizing all
       rational means for ascertaining the truth.” Id. (quoting In re
       Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir. 1990)).

BouSamra v. Excela Health, 210 A.3d 967, 975 (Pa. 2019).




____________________________________________


          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; and
          (4) pursuant to Federal rules, statutes and regulations
          governing disclosure of patient information where
          treatment is undertaken in a Federal agency.
          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 8 of the act of April 14,
     1972 (P.L. 221, No. 63), known as the “Pennsylvania Drug and
     Alcohol Abuse Control Act.”
50 P.S. § 7111(a) (footnotes omitted).

Commonwealth v. Segarra appeal of: Complainant Witness, D.G., a

minor, 2020 WL 611132, at * 4-5 (Pa.Super. Feb. 10, 2020).



                                           -9-
J-A06039-20


      Herein, during discovery in her underlying action, Appellee sought to

determine whether or not Appellants knew of Mr. Hewlett’s sexually violent

past at the time he allegedly attacked Appellee on January 21, 2016. Appellee

served upon Appellants a request for admission, and Appellants responded as

follows:

              Q. It is admitted that Defendant, Fairmount Behavioral
      Health System, knew that Mr. Hewlett was a convicted sex
      offender in January 2016.

                ANSWER: Objection. The [c]out previously determined
      that all inquiries regarding patients other than Plaintiff were not
      properly part of discovery of this case.

See Responses of Defendants, Fairmont Behavioral Health System and UHS

of Fairmont, Inc., to Plaintiff’s Requests for Admissions, at ¶ 5.

       Appellants maintain that an answer to the above-cited request for

admission would affect Mr. Hewlett adversely by requiring a review of his

medical records, since Appellants do not obtain Megan’s Law reports or

perform medical background checks on their patients. Appellants observe that

Appellee served the disputed request only after the trial court had denied her

attempt to discover Mr. Hewlett’s medical records and posits that in doing so

she sought to bypass MHPA’s privileges and the “broadly defin[ed]”

psychotherapist-patent    privilege   to   obtain   the   same   information   she

attempted to glean from the records themselves. Brief for Appellants at 9-

10. In arguing that Appellee’s “overbroad” request “plainly seeks” privileged

information, Appellants reason that:


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J-A06039-20


             [Appellants] learn[] of a patient’s criminal history, such
      as a patient’s status as a sex offender, directly from that patient
      during interviews by treating providers for purposes of providing
      mental health care. Accordingly, to respond to [Appellee’s]
      request, [Appellants] must review a non-party patient’s medical
      records and then disclose information its providers asked a non-
      party patient to provide as part of the treatment process without
      that patient’s consent.

Id. at 13-14.

       While they acknowledge that “Hewlett’s criminal history is public

record[],” Appellants analogize the instant matter to this Court’s holdings in

cases pertaining to attorney-client privilege and conclude that “[a]bsent his

consent,    however,   [Appellants]    may     not   divulge   whether   Hewlett

communicated this fact to any treating provider at Fairmount.                 That

communication (to the extent it even occurred) falls squarely within the

psychotherapist-patient privilege.”    Id. at 17-19.   Appellants posit that the

trial court erred in finding an application of the privilege would disrupt Megan’s

Law, for the information Appellee seeks- whether Appellants knew in 2016

that Hewlett is a sex offender- differs from the information that Megan’s Law

requires to be disclosed- the fact that Hewlett is a sex offender. Id.at 22. We

disagree.

       In rejecting Appellants’ privilege claims, the trial court reasoned as

follows:

            Appellants state that the MHPA explicitly precludes a mental
      health facility from disclosing the “contents” of a patient's medical
      records. 50 Pa. Stat. §7111. The PA Superior Court held that
      testimony regarding privileged documents receives the same
      protections as the documents themselves. Commonwealth v.

                                      - 11 -
J-A06039-20


        Moyer, 595 A.2d 1177 (Pa. Super. Ct. 1991). Appellants claim the
        only way to reveal its knowledge of a particular patient's criminal
        background is by reviewing its intake and initial assessment forms
        and disclosing the information contained therein, therefore,
        violating the MHPA.
               Furthermore, Appellants claim this [c]ourt's orders require
        they violate the psychotherapist-patient privilege, which states
        “no psychiatrist or [psychologist] 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.” 42 Pa. Stat. §5944. Appellants
        claim the only way to answer the request is by revealing
        information acquired in the course of providing psychotherapy
        services to a patient who has not consented to the release of this
        information. Lastly, Appellants claim this [c]ourt erred in its Order
        because [Appellants] cannot possibly waive a privilege that its
        patients, and only its patients, possess.
               Appellants are correct in that the MHPA explicitly precludes
        a mental health facility from disclosing the “contents” of a
        patient's medical records. However, the request for admission in
        question is not asking Appellants to disclose any information from
        a patient's medical records. The request asks Fairmount to confirm
        or deny whether “[Appellants] knew that Mr. Hewlett was a
        convicted sex offender in January of 2016.” Although it may be
        possible that this information would be included in a patient's
        medical records, the information is also available to the general
        public as required by Megan's Law.
               “Looking to the purposes of the privilege as addressed in
        such cases as Kyle and In re Subpoena No. 22,[6] it is clear that
        the privilege is designed to protect confidential communications
        made and information given by the client to the psychotherapist
        in the course of treatment. The psychiatric file is imbued with the
        privilege because it might contain such confidential information.”
        Commonwealth. v. Simmons, 719 A.2d 336, 341 (Pa. Super.
        1998) (emphasis added). Mr. Hewlett's status as a registered sex
        offender does not qualify as the type of information the MHPA
        intended to make privileged. In fact, it directly counters the entire
        purpose of Megan's Law to make the identity of a known sex
        offender available to the public.
               Even if, as purported by Appellants, the only way to reveal
        its knowledge of Mr. Hewlett's criminal background is by reviewing
____________________________________________


6   The trial court omits a complete citation for this caselaw.

                                          - 12 -
J-A06039-20


     its intake and initial assessment forms and disclosing the
     information contained therein, his status as a sex offender is not
     the type of information protected by the MHPA. Including the sex
     offender status of a patient in a medical file and thereafter
     asserting privilege would circumvent Megan's Law. Furthermore,
     the request for admission in question is not whether Mr. Hewlett
     disclosed this information to Appellants, but whether they were
     aware of Mr. Hewlett's publicly available status as a sex offender.
     The request does not include asking how or when exactly they
     became aware of this fact, only asking if they were aware of a fact
     available to the public as of January 2016. Just because the
     documentation of their knowledge that Mr. Hewlett was a
     registered sex offender may be located in his medical files does
     not automatically make Appellants knowledge of that fact
     privileged. Accordingly, Appellant's claim is misguided.
            As such, admitting whether or not Appellants knew of Mr.
     Hewlett's status as a sex offender in January 2016 would not
     qualify as a violation of the psychotherapist -patient privilege.
     Appellants cite 42 Pa Stat. §5944, which states “no psychiatrist or
     [psychologist] 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.” However, 42 Pa. Stat. §5944 also goes on to say the
     following: “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.” (Emphasis supplied) The focus is again on the alleged
     “confidential” nature of Mr. Hewlett's status as a sex offender. Mr.
     Hewlett has absolutely no right to keep his status as a sex offender
     concealed. In fact, doing so would be in direct opposition to
     Megan's Law.
            Appellee is not asking for any information regarding the
     actual treatment of Appellants’ patient. Additionally, [she] did not
     ask for any private thoughts of Mr. Hewlett that may have been
     discussed with his psychotherapist or observations or analysis the
     psychotherapist made in relation to these discussions. We again
     emphasize, all that was asked is whether they were aware of Mr.
     Hewlett's status as a sex offender in January 2016. Appellants
     make the argument that they are unable to disclose whether they
     knew of this information without disclosing contents of privileged
     communications and medical records due to the placement of a
     patient's legal history alongside his medical records. At no point
     in Appellee’s request for admission was there a request for
     production of Mr. Hewlett’s medical records or privileged

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J-A06039-20


     communications. Knowledge of information, which is mandated to
     be made available to the general public, does not require the
     disclosure of any of the privileged content that may be found in
     these records.
            Appellants assert they do not obtain publicly available
     background information on its patients and that any knowledge of
     such comes from the patient himself or collateral contacts. Dep.
     Of Nicole Vandermay 219:17-220:2; 222:15-16. However, just
     because the source of knowledge of this information may be the
     patient does not automatically correlate to that information being
     considered privileged. As stated previously, the purpose of
     Megan’s Law is so that the identity of a sex offender is to never
     be concealed from the general public. Appellants cannot assert
     psychotherapist-patient privilege as it pertains to a patient's
     registration as a sex offender. Furthermore, Appellee [is] merely
     requesting knowledge as to whether or not they knew, as of
     January 2016, of Mr. Hewlett's status, which is available to the
     general public. Again, [she is] not asking how they were made
     aware or for any information regarding treatment as a result of
     his status. Accordingly, Appellants claim that patient-
     psychotherapy privilege would be violated if they answer the
     request for admission is misguided.
            Likewise, since this is not privileged information, there is no
     issue of a non-party patient losing privilege based on Appellants
     answering this request for admission. Appellants claim that the
     MHPA gives absolute confidentiality privilege to the patient, and
     only the patient may waive that privilege and allow protected
     information to be released. Pearson v. Miller, 211 F.3d 57, 70
     (3d Cir. 2000) (emphasis added). Once again, Appellants are
     mistaken in that Mr. Hewlett's status as a registered sex offender
     qualifies as protected and privileged information which would
     require consent by the patient. Appellants cannot claim merely
     because a patient may have disclosed this information in the
     course of a medical intake inquiry that it should be treated as
     confidential and privileged information. It is mandated that Mr.
     Hewlett's status as a registered sex offender be attainable by the
     general public. As a result, Mr. Hewlett has no right of privilege to
     his status as a sex offender, therefore, there are no waiver rights
     for him to lose as a result of this discovery request. Likewise,
     Appellants do not require a waiver to indicate whether or not they
     knew of information available to the general public in January of
     2016, regardless of the source of that information.




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J-A06039-20


Trial Court Opinion, filed 9/26/19, at 3-6 (unnumbered) (footnote omitted)

(emphasis in original).

       Utilizing the same rationale, we reach the same conclusion. Appellants’

claim to the contrary, the MHPA is to be strictly construed, and the

psychiatrist-patient privilege protects only confidential communications and

information relayed by a patient to his psychiatrist or psychologist in the

course of his or her treatment. See Segarra, supra.          The information

Appellee seeks does not require the exposure of confidential communications

kept by Appellants in Hewlett’s treatment record; rather, the request for

admission seeks to determine whether Appellants had knowledge of an

undisputed and publicly available fact- Hewlett’s sex offender status.        As

Appellee notes, “[a] simple ‘admit’ or ‘deny’ sheds no light on when, why,

where or from whom the information was (or was not) gleaned.         In other

words, [Appellants’] actual answer to the request reveals nothing beyond

their awareness of a publicly-promulgated fact.     That is all.”    Brief for

Appellee at 9 (emphasis in original).

      Finding no error, we affirm the trial court’s May 14, 2019, Order,

affirming Appellee’s Motion to Strike Objections to Requests for Admission.

       Order affirmed. Jurisdiction relinquished.




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J-A06039-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/20




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