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                                  2016 PA Super 161



VICKI L. MCLAUGHLIN AND CAROL L.                  IN THE SUPERIOR COURT OF
MACCONNELL, CO-ADMINISTRATRICES                         PENNSYLVANIA
FOR THE ESTATE OF DOROTHY L.
BRACE, DECEASED



                       v.

GARDEN SPOT VILLAGE AND GARDEN
SPOT VILLAGE OF AKRON D/B/A MAPLE
FARM NURSING CENTER AND GLENN
HERSHEY

APPEAL OF: GARDEN SPOT VILLAGE
AND GARDEN SPOT VILLAGE OF AKRON                       No. 647 MDA 2015
D/B/A MAPLE FARM NURSING CENTER


                  Appeal from the Order Entered April 13, 2015
               In the Court of Common Pleas of Lancaster County
                        Civil Division at No: CI-14-01922


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

OPINION BY STABILE, J.:                                 FILED JULY 22, 2016

        Appellant, Garden Spot Village and Garden Spot Village of Akron d/b/a

Maple Farm Nursing Center (“Appellant”) appeals from the April 13, 2015

order denying Appellant’s motion for a protective order. We affirm.

        Plaintiffs Vicki L. McLaughlin and Carol L. MacConnell, as co-

administratrices of the estate of Dorothy L. Brace (the “Decedent”), sued

Appellant and Glenn Hershey (“Hershey”) for negligence, breach of fiduciary
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*
    Former Justice specially assigned to the Superior Court.
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duty, and premises liability after Hershey sexually assaulted the Decedent

while Hershey and the Decedent were residents of Appellant’s nursing home.

Hershey was a registered sex offender before he assaulted the Decedent.

Hershey subsequently pled guilty to involuntary deviate sexual intercourse 1

and received a sentence of eight to twenty years of incarceration.         The

Decedent passed away ten months after the assault from unrelated causes.

Plaintiffs alleged Appellant was aware of the threat Hershey posed to the

Decedent.

       Presently, we must resolve a discovery dispute.      The Older Adults

Protective Services Act (the “Act”), 35 P.S. § 10225.101, et. seq.,2 provides

for the creation of local agencies to investigate reports of abuse of persons

60 years and older and, if necessary, provide protective services to the

victim and report the incident to law enforcement.      The Act also contains

provisions protecting the confidentiality of agency records and the identity of

reporters of abuse. The parties already have received and reviewed various

redacted records from Lancaster County Office of Aging (“Office”), which

investigated Hershey’s assault of the Decedent.     Also, the parties deposed

four employees of the Office under stipulation that the deponents not be

asked to identify reporters of abuse or other persons who cooperated in the
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1
    18 Pa.C.S.A. § 3123(a)(5).
2
  1987 Pa. Laws 381, as amended at 1996 Pa. Laws 1125 and 1997 Pa.
Laws 160.



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investigation. Plaintiffs now seek to depose one of Appellant’s employees,

Carrie Kneisley (“Kneisley”), and ask, among other things, what she told the

Office.   Appellant filed a motion for a protective order, arguing Kneisley’s

testimony is privileged under the Act.            The trial court denied Appellant’s

motion and permitted the deposition to go forward under seal.              Appellant

filed this timely interlocutory appeal from that order pursuant to Pa.R.A.P.

313.3

        Appellant argues the Act created a privilege that precludes plaintiffs

from taking Kneisley’s deposition.             This is a matter of first impression.

Interpretation of the Act presents a question of law. Phoenixville Hosp. v.

Workers’ Comp. Appeal Bd., 81 A.3d 830, 838 (Pa. 2013). Therefore, our

standard of review is de novo and our scope of review is plenary.             In re

Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa.

2014).    We observe that our law disfavors evidentiary privileges because

“they operate in derogation of the search for truth.”                  Id. (quoting

Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997)). Nonetheless,

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3
   “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(b).
This Court commonly exercises jurisdiction over a collateral appeal involving
an assertion of an evidentiary privilege.         Berkeyheiser v. A-Plus
Investigations, Inc., 936 A.2d 1117, 1123-24 (Pa. Super. 2007). The
parties do not dispute this point.




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our courts will faithfully adhere to constitutional, statutory, or common law

privileges.

            [W]here the legislature has considered the interests at
      stake and has granted protection to certain relationships or
      categories of information, the courts may not abrogate that
      protection on the basis of their own perception of public policy
      unless a clear basis for doing so exists in a statute, the common
      law, or constitutional principles. Commonwealth v. Moore, []
      [584 A.2d 936, 940 (Pa. 1991)] (‘[T]he general powers of the
      courts do not include the power to order disclosure of materials
      that the legislature has explicitly directed be kept confidential.’).

V.B.T. v. Family Servs. of W. Pennsylvania, 705 A.2d 1325, 1335 (Pa.

Super. 1998), affirmed, 728 A.2d 953 (Pa. 1999).

      As this case involves statutory construction, we observe the following:

            If the language of the statute clearly and unambiguously
      sets forth the legislative intent, it is the duty of the court to
      apply that intent to the case at hand and not look beyond the
      statutory language to ascertain its meaning. See 1 Pa.C.S.
      § 1921(b) (“When the words of a statute are clear and free from
      all ambiguity, the letter of it is not to be disregarded under the
      pretext of pursuing its spirit.”). ‘Relatedly, it is well established
      that resort to the rules of statutory construction is to be made
      only when there is an ambiguity in the provision.’ Oliver v. City
      of Pittsburgh, 11 A.3d 960, 965 (Pa. 2011).

Mohamed v. Commonwealth, Dep't of Transp., Bureau of Motor

Vehicles, 40 A.3d 1186, 1193 (Pa. 2012).

      Several provisions in the Act protect persons who report abuse and

protect the confidentiality of certain information. Section 302 provides, “Any

person having reasonable cause to believe that an older adult is in need of

protective services may report such information to the agency which is the

local provider of protective services.”     35 P.S. § 10225.302(a).      Section


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302(c) creates a civil remedy for any reporter of abuse who suffers

retaliation for making the report. 35 P.S. § 10225.302(c). Section 302(c.1)

provides a civil remedy for intimidation of anyone with sufficient knowledge

to make a report.    35 P.S. § 10225.302(c.1).     Most significantly, Section

302(d) provides, “Any person participating in the making of a report or who

provides testimony in any administrative or judicial proceeding arising out of

a report shall be immune from any civil or criminal liability on account of the

report or testimony unless the person acted in bad faith or with malicious

purpose.”    35 P.S. § 10225.302(d).       Thus, § 302(d) contemplates that

judicial proceedings may arise out of reports of abuse, as has happened

instantly.   Section 302(d) protects persons who become witnesses in a

judicial proceeding from criminal or civil liability based on their testimony,

but unambiguously does not preclude their testimony.

      Next, we turn to § 306 of the Act, titled “Confidentiality of records.”

35 P.S. § 306:

      (a) General rule.--Information contained in reports, records of
      investigation, client assessment and service plans shall be
      considered confidential and shall be maintained under
      regulations promulgated by the department to safeguard
      confidentiality. Except as provided below, this information shall
      not be disclosed to anyone outside the agency other than to a
      court of competent jurisdiction or pursuant to a court order.

      (b) Limited access to the agency’s protective services
      records.--

            (1) In the event that an investigation by the agency results
      in a report of criminal conduct, law enforcement officials shall



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      have access to all relevant records maintained by the agency or
      the department.

            (2) In arranging specific services to carry out service
      plans, the agency may disclose to appropriate service providers
      such information as may be necessary to initiate the delivery of
      services.

            (3) A subject of a report made under section 302 may
      receive, upon written request, all information contained in the
      report except that prohibited from being disclosed by paragraph
      (4).

            (4) The release of information that would identify the
      person who made a report of suspected abuse, neglect,
      exploitation or abandonment or person who cooperated in a
      subsequent investigation, is hereby prohibited unless the
      secretary can determine that such a release will not be
      detrimental to the safety of such person.

            (5) When the department is involved in the hearing of an
      appeal by a subject of a report made under section 302, the
      appropriate department staff shall have access to all information
      in the report record relevant to the appeal.

            (6) For the purposes of monitoring agency performance,
      appropriate staff of the department may access agency
      protective services records.

35 P.S. § 10225.306 (footnote omitted).

      Appellant   relies   on   § 306   to    demonstrate    that   protecting   the

confidentiality of agency records and the identity of reporters of abuse is of

“paramount concern” under the Act.           Appellant’s Brief at 14.   Appellant is

correct in asserting that § 306 circumscribes the availability of agency

records. That section is of little or no relevance to this appeal, however, as




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agency records are not at issue. Kneisley is not an agency4 employee, nor is

there any reason to believe she has the ability to disclose any agency

records.

       Appellant also relies on Chapter seven of the Act (“Reporting

Suspected Abuse by Employees”).                Chapter seven addresses “employee”

reports of abuse of “recipients.” 35 P.S. § 10225.701(a)(1). An “employee”

is a person employed by a “facility.” 35 P.S. § 10225.103 (“Employee”). A

“facility” can be a nursing home or other care center. 35 P.S. § 10225.103

(“Facility”). A “recipient” is “[a]n individual who receives care, services or

treatment in or from a facility.” 35 P.S. § 10225.103 (“Recipient”). We will

assume for purposes of analysis that Appellant’s nursing home is a “facility,”

Kneisley is an “employee,” and the Decedent was a “recipient,” as those

terms are defined in the Act.5 Section 701 requires an employee to report

suspected abuse of a recipient to the agency and potentially to law

enforcement.       35 P.S. § 10225.701(a), (b).          Section 705 governs the

confidentiality of reports made under Chapter 7:

       (a) General rule.--Except as provided in subsection (b), a
       report under this chapter shall be confidential.

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4
    An “agency” is a local provider of protective services, per the Act’s
definitions section. 35 P.S. § 10225.103 (“Agency”).
5
   The trial court issued no findings on these issues and the parties do not
address them. Our assumption for purposes of analysis creates no binding
precedent on the matter.



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     (b) Exceptions.--A report under this chapter shall be made
     available to all of the following:

           (1) An employee of the department or of an agency in the
     course of official duties in connection with responsibilities under
     this chapter.

          (2) An employee of the Department of Health or the
     Department of Public Welfare in the course of official duties.

           (3) An employee of an agency of another state which
     performs protective services similar to those under this chapter.

            (4) A practitioner of the healing arts who is examining or
     treating a recipient and who suspects that the recipient is in
     need of protection under this chapter.

            (5) The director, or an individual specifically designated in
     writing by the director, of any hospital or other medical
     institution where a victim is being treated if the director or
     designee suspects that the recipient is in need of protection
     under this chapter.

           (6) A guardian of the recipient.

           (7) A court of competent jurisdiction pursuant to a court
     order.

           (8) The Attorney General.

           (9) Law enforcement officials of any jurisdiction as long as
     the information is relevant in the course of investigating cases of
     abuse.

           (10) A mandated reporter under Chapter 3 who made a
     report of suspected abuse. Information released under this
     paragraph shall be limited to the following:

                 (i) The final status of the report following the
           investigation.

                (ii) Services provided or to be provided by the
           agency.




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      (c) Excision of certain names.--The name of the person
      suspected of committing the abuse shall be excised from a
      report made available under subsection (b)(4), (5) and (10).

      (d) Release of information to alleged perpetrator and
      victim.--Upon written request, an alleged perpetrator and victim
      may receive a copy of all information except that prohibited from
      being disclosed by subsection (e).

      (e) Protecting identity of person making report.--Except for
      reports to law enforcement officials, the release of data that
      would identify the individual who made a report under this
      chapter or an individual who cooperated in a subsequent
      investigation is prohibited. Law enforcement officials shall treat
      all reporting sources as confidential information.

35 P.S. § 10225.705.

      Assuming § 705’s applicability to Kneisley as an employee, Appellant

as a facility, and the Decedent as recipient, the Act required Kneisley to

report Hershey’s abuse of the Decedent (if she had reasonable cause to

suspect that abuse occurred, per § 701(a) and (b)) to the Office and to law

enforcement.     If Kneisley made such a report, § 705 protects the

confidentiality of that report.   Likewise, § 705(e) precludes the “release of

data” that would identify the reporter.        35 P.S. § 10225.705(e).     We

conclude § 705 cannot support Appellant’s argument because Plaintiffs are

not seeking an agency report.

      Notwithstanding the foregoing, Appellant argues Kinsley’s deposition

will constitute an impermissible “release of data” under § 705(e). Appellant

argues that § 705(e) does not identify which entities or persons are

prohibited from releasing data, and therefore that prohibition applies to



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everybody.     Appellant’s Brief at 18.     We find nothing in § 705(e) that

prevents Kneisley from testifying in a civil action arising from the alleged

abuse. As noted above, § 302(d) expressly contemplates that reporters of

abuse and other persons who cooperate in an agency investigation will be

called upon to testify in judicial proceedings. Nothing in § 705(e) precludes

third parties such as Plaintiffs from gathering information by deposing an

employee. In other words, § 705 does not render employees who cooperate

in agency investigations incompetent to testify in subsequent judicial

proceedings.

      Finally, Appellant argues that Kneisley’s deposition will violate the

policy of the act, as set forth in § 102:

            It is declared the policy of the Commonwealth of
      Pennsylvania that older adults who lack the capacity to protect
      themselves and are at imminent risk of abuse, neglect,
      exploitation or abandonment shall have access to and be
      provided with services necessary to protect their health, safety
      and welfare. It is not the purpose of this act to place restrictions
      upon the personal liberty of incapacitated older adults, but this
      act should be liberally construed to assure the availability of
      protective services to all older adults in need of them. Such
      services shall safeguard the rights of incapacitated older adults
      while protecting them from abuse, neglect, exploitation and
      abandonment. It is the intent of the General Assembly to provide
      for the detection and reduction, correction or elimination of
      abuse, neglect, exploitation and abandonment, and to establish
      a program of protective services for older adults in need of
      them.

35 P.S. § 10225.102.      Appellant argues the trial court’s order will create

among those who witness abuse a reluctance to come forward. This in turn,

will deny protective services to those who need them and thereby violate

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§ 102’s mandate to construe the Act liberally to assure availability of

protective services.

      Appellant cites the Child Protective Services Law (“CPSL”), 23

Pa.C.S.A. § 6301, et. seq., as construed in V.B.T., as an analogue.        One

purpose of the CPSL is to “[e]ncourage more complete reporting of

suspected child abuse.”     23 Pa.C.S.A. § 6302.      In V.B.T., the plaintiff

parents filed suit for the alleged sexual and physical abuse of their child by a

foster child living in their neighborhood.    V.B.T., 705 A.2d at 1327.     The

plaintiffs alleged, among other things, that the defendant agency was aware

of the foster child’s propensity to abuse other children and therefore was

negligent in placing the foster child in a neighborhood with other young

children. Id. The plaintiffs noticed a deposition for the purpose of exploring

the agency’s knowledge of the foster child’s personal and family history, and

the agency moved for a protective order.        Id. at 1328.    The trial court

denied the agency’s motion, reasoning that it would cripple the plaintiff’s

ability to prosecute their case against the agency.          Id. at 1328-29.

Significantly, neither party questioned “the trial court’s finding that the

matters of which the plaintiffs seek discovery fall within the ambit of

privileges created by [the CPSL].”    Id. at 1329.   In other words, the trial

court and the parties recognized the applicability of a statutory privilege.

The agency contested the trial court’s conclusion that the plaintiffs’ interest




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in prosecuting their negligence action outweighed the agency’s interest in

relying on its statutory privilege. Id.

      This Court described the purposes of the CPSL’s confidentiality

provisions:

             [T]o encourage reporting of abuse by ensuring that
      persons with knowledge of abuse are not deterred from
      reporting it by the prospect of the abuser learning their identity
      and seeking retribution; to facilitate the investigation of abuse
      by assuring potential witnesses that the information they provide
      to investigators will not be made public; to facilitate the
      rehabilitation and treatment of abused children and their families
      by encouraging open, frank communications with agency
      personnel and treatment providers; to encourage the effective
      operation of the child protective service by enabling it to keep
      complete and comprehensive files on all aspects of a family’s
      circumstances without fear that information placed in such files
      will be subject to scrutiny by persons not involved in the process
      of rehabilitating the family; and to prevent the innocent victims
      of abuse from also becoming victims of public stigma by
      guarding information about the intimate details of their lives
      from the prying eyes of outsiders.

Id. at 1335-36. We further concluded that the plaintiffs demonstrated no

common law, statutory, or constitutional interest that outweighed the

application of a clearly applicable statutory privilege. Id.

      Two significant distinctions between V.B.T. and the instant case render

the V.B.T. Court’s analysis inapplicable here.       First, the agency was a

defendant.    Second, the plaintiffs admittedly sought information protected

by the CPSL’s confidentiality provisions.     Instantly, the Lancaster County

Office of Aging is not a party, and we find nothing in the Act prohibiting a

nursing home employee from testifying in a civil action.       Appellant would



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have us conclude that any person who reports abuse or cooperates in an

agency’s investigation of reported abuse of an older adult is disqualified from

testifying in a subsequent judicial proceeding. Nothing in the Act supports

Appellant’s argument, and § 302(d) directly contradicts it. Appellant is not

entitled to relief.

      Based on all of the foregoing, we discern no error in the trial court’s

order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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