In Re: Enforcement of Subpoenas b/f the Bd of Med. ( 2019 )

[J-98-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: PETITION FOR ENFORCEMENT : No. 35 EAP 2016
OF SUBPOENAS ISSUED BY THE :
HEARING EXAMINER IN A : Appeal from the Order of the
PROCEEDING BEFORE THE BOARD : Commonwealth Court entered on
OF MEDICINE : September 1, 2016, at No. 373 M.D.
: 2016, granting the Petition to Enforce
: Subpoenas.
APPEAL OF: M.R. :
: ARGUED: December 5, 2018
OPINION
JUSTICE WECHT DECIDED: August 20, 2019
In this direct appeal, we are asked to consider the enforceability of a series of
subpoenas obtained by a physician for testimony and treatment records relating to other
providers’ care of the physician’s former patient, as well as related questions regarding
the scope and applicability of numerous statutes that protect a patient’s medical
information. The Commonwealth Court granted the physician’s petition to enforce the
subpoenas. Because we conclude that the Commonwealth Court lacked subject matter
jurisdiction to decide the issue, we must vacate that court’s order.
Our disposition requires only a brief summary of the factual background. Sarah G.
DeMichele, M.D., is a board-certified psychiatrist licensed to practice medicine in
Pennsylvania. From August 2011 through February 2013, Dr. DeMichele provided
psychiatric care to M.R. Throughout her time under Dr. DeMichele’s care, M.R. struggled
with suicidal ideations and engaged in a pattern of self-harming behavior, which she
discussed regularly with Dr. DeMichele. In December 2012, M.R.’s self-inflicted injuries
necessitated emergency medical treatment. M.R. ultimately was transferred to the
Trauma Disorders Program at Sheppard Pratt Health System (“Sheppard Pratt”) in
Baltimore, Maryland. At Sheppard Pratt, M.R. was treated by psychiatrist Richard
Loewenstein, M.D., and psychologist Catherine Fine, Ph.D. During the course of his
treatment of M.R., Dr. Loewenstein obtained M.R.’s medical records from Dr. DeMichele.
On March 31, 2014, Dr. Loewenstein submitted a complaint to the Professional
Compliance Office of Pennsylvania’s State Board of Medicine (“Board”), in which he
alleged that Dr. DeMichele’s care of M.R. was professionally deficient. Dr. Loewenstein’s
complaint prompted an investigation and, ultimately, the initiation of disciplinary
proceedings against Dr. DeMichele.
On September 24, 2015, the Pennsylvania Department of State’s Bureau of
Professional and Occupational Affairs (“Bureau”) filed an order directing Dr. DeMichele
to show cause as to why the Board should not suspend, revoke, or restrict her medical
license, or impose a civil penalty or the costs of investigation. Dr. DeMichele filed a
counseled response to the order, denying the allegations and requesting a hearing before
a hearing examiner.1 A hearing on the disciplinary proceeding was scheduled for June
15, 2016.
1 See 63 P.S. § 2203(a) (“Notwithstanding any other provision of law, the
Commissioner of the Bureau of Professional and Occupational Affairs, after consultation
with the licensing boards and commissions, shall appoint such hearing examiners as may
be necessary to conduct hearings in disciplinary matters before a licensing board or
commission. Each licensing board and commission shall have the power to decide if a
specific disciplinary matter or type of disciplinary matter is to be heard by the licensing
board or commission itself or by a hearing examiner appointed pursuant to this
subsection.”); 49 Pa. Code § 16.51 (“Hearing examiners are appointed by the Governor’s
Office of General Counsel to hear matters before the Board. Unless otherwise ordered
by the Board, disciplinary matters shall be heard by a hearing examiner.”).
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In advance of the hearing, Dr. DeMichele requested that the hearing examiner
issue subpoenas for the testimony of M.R. and the medical records of Dr. Loewenstein,
Dr. Fine, Sheppard Pratt, and M.R.’s former treating psychologist, April Westfall, Ph.D.
Relying upon the authority provided under 63 P.S. § 2203(c),2 the hearing examiner
issued the requested subpoenas. However, when served with the subpoenas, all of
M.R.’s treatment providers refused to release their records absent a court order or M.R.’s
authorization. M.R. subsequently refused to authorize the release of her records.
On June 9, 2016, Dr. DeMichele filed with the hearing examiner a motion to dismiss
the disciplinary action or, in the alternative, to grant a continuance of the proceeding in
order to allow her to apply to the Commonwealth Court for an order compelling
compliance with the subpoenas. On June 10, 2016, the hearing examiner denied Dr.
DeMichele’s motion to dismiss, but granted a continuance so that Dr. DeMichele could
commence an action to enforce the subpoenas.
On July 1, 2016, Dr. DeMichele filed a Petition to Enforce Subpoenas (“Petition”)
in the Commonwealth Court, asking that court to order M.R., Sheppard Pratt, and Drs.
Loewenstein, Fine, and Westfall to comply with the subpoenas. Dr. DeMichele did not
specify whether she commenced the action in the Commonwealth Court’s original or
appellate jurisdiction. See 42 Pa.C.S. §§ 761 (original jurisdiction); 763 (direct appeals
from government agencies). Dr. DeMichele’s Petition did not name any party, but she
2 Subsection 2203(c) provides:
Such hearing examiners shall have the power to conduct hearings in
accordance with applicable statutes, rules and regulations, to issue
subpoenas requiring the attendance and testimony of individuals or the
production of pertinent records or other papers by persons whom they
believe have information relevant to any matters pending before the
examiner and to issue decisions.
63 P.S. § 2203(c).
[J-98-2018] - 3
served the Petition on the Board and the Bureau (collectively, the “Commonwealth”). Dr.
DeMichele did not serve the Petition upon M.R. or the treatment providers against whom
she sought enforcement of the subpoenas. However, upon receiving a courtesy copy of
the Petition, M.R. retained counsel and sought to intervene in the enforcement action.
The Commonwealth Court held a hearing on September 1, 2016, following which
the court granted Dr. DeMichele’s Petition and ordered that each subpoena be enforced.
After the Commonwealth Court denied her motion for reconsideration, M.R. filed a notice
of appeal to this Court. On appeal, M.R. argued for the first time that the Commonwealth
Court lacked subject matter jurisdiction to entertain Dr. DeMichele’s Petition.3 On August
22, 2017, this Court directed the Commonwealth Court to prepare an opinion addressing
M.R.’s allegations of error, including the jurisdictional challenge.
On April 26, 2018, the Commonwealth Court issued an opinion addressing M.R.’s
claims. In re Petition for Enf’t of Subpoenas Issued by the Hearing Exam’r in a Proceeding
before the Bd. of Med., 373 M.D. 2016 (Pa. Cmwlth. Apr. 26, 2018) (unpublished)
(hereinafter, “Commonwealth Court Opinion”). Concerning subject matter jurisdiction, the
Commonwealth Court reasoned that it exercised original jurisdiction over Dr. DeMichele’s
Petition. The Commonwealth Court first appeared to invoke Subsection 761(a)(4) of its
original jurisdiction statute, which establishes the Commonwealth Court’s jurisdiction over
any civil action or proceeding, “[o]riginal jurisdiction of which is vested in the
Commonwealth Court by any statute hereafter enacted.” 42 Pa.C.S. § 761(a)(4). That
subsequently enacted statute, the Commonwealth Court reasoned, was the Medical
3 Although M.R. did not raise the issue of subject matter jurisdiction before the
Commonwealth Court, an “objection to lack of subject-matter jurisdiction can never be
waived; it may be raised at any stage in the proceedings by the parties or by a court [o]n
its own motion.” Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974).
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Practice Act of 1985 (“MPA”),4 one provision of which authorizes the Board to “apply to
Commonwealth Court to enforce its subpoenas.” 63 P.S. § 422.9(c). The
Commonwealth Court recognized that the “instant proceeding differs in nature” from one
that typically would fall under 63 P.S. § 422.9(c) “because the Board did not initiate the
action.” Commonwealth Court Opinion at 11. The Commonwealth Court did not resolve
the apparent inconsistency with the language of the MPA, instead offering, seemingly in
the alternative, different bases for its exercise of original jurisdiction.
The Commonwealth Court reasoned that subpoena enforcement actions are
“proceedings ‘[b]y the Commonwealth government,’ as described in Section 761(a)(2) of
the Judicial Code.” Id. (quoting 42 Pa.C.S. § 761(a)(2)). The court quoted this Court’s
decision in Pennsylvania Human Relations Commission v. Lansdowne Swim Club, 526
A.2d 758 (Pa. 1987), wherein we stated that, “[i]n a subpoena enforcement proceeding,
the action is brought by an agency of the Commonwealth and Commonwealth Court’s
jurisdiction is original and concurrent with the courts of common pleas.” Commonwealth
Court Opinion at 11 (quoting Lansdowne, 526 A.2d at 760). Thus, the Commonwealth
Court suggested that the action was brought “[b]y the Commonwealth government,”
establishing jurisdiction under 42 Pa.C.S. § 761(a)(2).
The court next invoked Subsection 761(a)(1) of its original jurisdiction statute,
which provides that the Commonwealth Court shall have original jurisdiction over civil
actions brought “[a]gainst the Commonwealth government.” 42 Pa.C.S. § 761(a)(1). With
regard to Subsection 761(a)(1), the court reasoned:
Dr. DeMichele filed the Petition with this court to which the Commonwealth
filed an answer and alleged new matter, asserting that the subpoenaed
records were protected by privilege and statutory confidentiality provisions.
Two Commonwealth attorneys entered their appearances to oppose the
Petition. Thereafter, the Commonwealth appeared at argument before this
4 63 P.S. §§ 422.1-422.51a.
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court in opposition to Dr. DeMichele’s Petition. M.R. appeared at the
hearing based upon her application and fully participated. For these
reasons, the court had subject matter jurisdiction over Dr. DeMichele’s
Petition against the Commonwealth.
Commonwealth Court Opinion at 12 (capitalization modified; footnotes omitted).
Case law has long established that, in order for the Commonwealth Court to
exercise original jurisdiction under 42 Pa.C.S. § 761(a)(1), the Commonwealth must be
an indispensable party to the action. See, e.g., Annenberg v. Commonwealth, 686 A.2d
1380, 1384 (Pa. Cmwlth. 1996) (“[T]he Commonwealth must be an indispensable party
to the action for Section 761(a)(1) to apply.”); see also CRY, Inc. v. Mill Serv. Inc., 640
A.2d 372, 377-78 (Pa. 1994)). In a footnote, the Commonwealth Court briefly addressed
M.R.’s contention that the Commonwealth was not an indispensable party to Dr.
DeMichele’s action. Because the Board and Bureau were the only entities that Dr.
DeMichele served with her Petition, the Commonwealth Court reasoned that “the
Commonwealth was not one of several defendants, it was the only defendant.”
Commonwealth Court Opinion at 12-13 n.15. The court did not further address the
standard by which a party is determined to be indispensable to an action.
Following receipt of the Commonwealth Court’s opinion, we granted the parties the
opportunity to file supplemental briefs addressing, inter alia, the Commonwealth Court’s
finding of subject matter jurisdiction.5 M.R. contends that Dr. DeMichele’s Petition cannot
5 We further requested briefing from the Board regarding the question of subject
matter jurisdiction, and requested that the Board address “the procedure by which
discovery subpoenas issued at the request of a private individual in medical disciplinary
cases are typically enforced.” Order, 7/18/2018. On behalf of the Board, the Prosecution
Division of the Department of State submitted a brief responsive to this Court’s order.
Regarding subject matter jurisdiction, the Board offers a construction of the applicable
jurisdictional statutes consistent with the interpretation that we provide in this Opinion.
With regard to the “typical” procedure, the Board states that, “[a]fter reasonable
investigation, the Board is not aware of a prior case where a private individual or entity
has sought enforcement of a hearing subpoena issued by the board, any other board or
[J-98-2018] - 6
be construed as commencing an action “[a]gainst the Commonwealth government,” 42
Pa.C.S. § 761(a)(1), because Dr. DeMichele “sought no judicial relief of any kind against
the Board or the Bureau.” Supplemental Brief for M.R. at 4. Rather, M.R. argues, “the
Petition merely recited various arguments as to why [Dr.] DeMichele, a private party,
should be granted an order compelling enforcement of five subpoenas that sought
documents and/or testimony from the five private respondents.” Id. at 4-5.
M.R. argues that neither the Board nor the Bureau qualify as indispensable parties
to this matter. Supplemental Brief for M.R. at 5 (citing Pa. State Educ. Ass’n ex rel. Wilson
v. Commonwealth, Dept. of Cmty. and Econ. Dev., 50 A.3d 1263, 1277 (Pa. 2012)
(hereinafter, “PSEA”); CRY, 640 A.2d at 377-78). M.R. reiterates that Dr. DeMichele
sought enforcement of the subpoenas against private parties, and that neither the Board
nor the Bureau were in possession of any of the materials implicated in the subpoenas.
M.R. characterizes the Board and the Bureau as “mere observers” of the action, not
indispensable parties thereto. Id. at 5.
M.R. further disputes the Commonwealth Court’s reliance upon our decision in
Lansdowne, contending that Lansdowne does not control this matter because, therein,
the subpoena enforcement proceeding was brought by the Pennsylvania Human Rights
Commission—an agency of the Commonwealth. Here, M.R. reiterates, a private party
commenced the subpoena enforcement proceeding. M.R. argues that the
Commonwealth Court erred in relying upon this Court’s statement that, “[i]n a subpoena
enforcement proceeding, the action is brought by an agency of the Commonwealth . . . .”
Lansdowne, 526 A.2d at 760. M.R. asserts that this was “not a statement intended to
commission in the Bureau . . . or a hearing examiner.” Brief of Prosecution Division of
the Department of State, Commonwealth of Pennsylvania, on behalf of the State Board
of Medicine, at 7. Absent a statutory basis for jurisdiction in the Commonwealth Court,
the Board argues that such enforcement proceedings fall within the general jurisdiction of
the Courts of Common Pleas. Id. at 13 (citing 42 Pa.C.S. § 931(a)).
[J-98-2018] - 7
convert subpoena enforcement actions commenced by one private individual against
another into original jurisdiction cases lying in the Commonwealth Court.” Supplemental
Brief for M.R. at 7. Rather, M.R. continues, the “quoted language merely addressed the
facts before the Court, which involved a subpoena enforcement action commenced by a
Commonwealth agency.” Id.
In her initial brief, Dr. DeMichele contended that her Petition implicated the
Commonwealth Court’s appellate jurisdiction, as an appeal from a final order of an
administrative agency under 42 Pa.C.S. § 763(a). Brief for Dr. DeMichele at 20-22.
However, following the Commonwealth Court’s issuance of its opinion, Dr. DeMichele
now takes the position that original jurisdiction lay in the Commonwealth Court pursuant
to 42 Pa.C.S. § 761(a)(1), because her action was against the Commonwealth and the
Commonwealth was an indispensable party. Dr. DeMichele contends that the subpoena
enforcement proceeding affects the Commonwealth’s substantive rights not only in the
underlying disciplinary proceeding, but also in future such disciplinary proceedings.
Supplemental Brief for Dr. DeMichele at 18-19.
Dr. DeMichele also addresses the Commonwealth Court’s reliance upon
Subsection 422.9(c) of the MPA. Like the Commonwealth Court, Dr. DeMichele
acknowledges that this provision authorizes the Board “to apply to Commonwealth Court
to enforce its subpoenas,” but contains no similar authorization for private individuals. 63
P.S. § 422.9(c). Recognizing that the absence of jurisdiction in the Commonwealth Court
would require her to seek relief in various Courts of Common Pleas, Dr. DeMichele
advances the argument that such a process would be inefficient and could lead to
inconsistent rulings. See Supplemental Brief for Dr. DeMichele at 20. Dr. DeMichele
contends that it is nonsensical to conclude that the Commonwealth may seek
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enforcement of its subpoenas in the Commonwealth Court, but that a private party
respondent in a disciplinary proceeding is not so authorized. Id.
Whether subject matter jurisdiction lies in the Commonwealth Court is a question
of statutory interpretation, as to which our standard of review is de novo and our scope of
review is plenary. Whitmoyer v. W.C.A.B. (Mountain Country Meats), 186 A.3d 947, 954
(Pa. 2018). In all matters of statutory interpretation, our review is guided by the rules of
construction set forth in the Statutory Construction Act of 1972.6 See 1 Pa.C.S. §§ 1901-
91. In construing statutory language, our foremost object is to “ascertain and effectuate
the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). As we commonly note, the
“best indication of legislative intent is the plain language of a statute.” Commonwealth by
Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1027 (Pa. 2018). “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.” 1 Pa.C.S. § 1921(b).
Applying these precepts to the statutes implicated herein, we conclude that the
Commonwealth Court lacked subject matter jurisdiction to entertain Dr. DeMichele’s
Petition. We first reject Dr. DeMichele’s argument that the Commonwealth Court properly
exercised its appellate jurisdiction. The pertinent statute provides that “the
Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of
government agencies.” 42 Pa.C.S. § 763(a) (emphasis added). A final order is one that
“disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1). Rule 341 additionally
provides that the issuing tribunal may designate as final an order that does not dispose
of all claims and all parties “only upon an express determination that an immediate appeal
would facilitate resolution of the entire case.” Pa.R.A.P. 341(c). “In the absence of such
6 1 Pa.C.S. §§ 1501-1991.
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a determination and entry of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not constitute a final order.” Id.
Dr. DeMichele’s action was not, as she claims, an appeal from a final order issued
by the hearing examiner. Although the hearing examiner issued an order on June 10,
2016, in order to allow Dr. DeMichele to proceed with her Petition in the Commonwealth
Court, this was an interlocutory order that did not dispose of any claims or parties, and
was not designated as final upon an express determination by the hearing examiner that
immediate appeal would facilitate resolution of the entire case. Indeed, the hearing
examiner’s order granted a continuance of the proceedings, an order which by its nature
does not dispose of claims or parties but, rather, postpones disposition. Accordingly,
there was no final administrative order from which an appeal to the Commonwealth Court
would lie under 42 Pa.C.S. § 763(a).
We further find no basis for the Commonwealth Court’s exercise of original
jurisdiction. In short, this was an action neither by nor against the Commonwealth, the
Commonwealth was not an indispensable party, and the MPA provides no authorization
for private parties to bring subpoena enforcement actions in the Commonwealth Court.
We address each of these points in turn.
Although the underlying disciplinary action was commenced by the Bureau, a
Commonwealth party, Dr. DeMichele’s Petition initiated a distinct cause of action. As
M.R. stresses, Dr. DeMichele, a private party, commenced the instant enforcement
proceedings against other private individuals and entities. Plainly, this was not an action
“[b]y the Commonwealth government.” 42 Pa.C.S. § 761(a)(2). The Commonwealth
Court’s reliance upon Lansdowne was misplaced. In Landsdowne, we held that original
jurisdiction properly lay in the Commonwealth Court under Subsection 761(a)(2) because
the subpoena enforcement proceeding therein was “brought by an agency of the
[J-98-2018] - 10
Commonwealth.” Lansdowne, 526 A.2d at 760. To the extent that our reasoning in
Lansdowne may be read to suggest that all subpoena enforcement proceedings fall within
the ambit of 42 Pa.C.S. § 761(a)(2), as the Commonwealth Court appears to have
concluded, we must clarify that Lansdowne does not stand for such a proposition.
For similar reasons, Dr. DeMichele’s Petition did not commence an action
“[a]gainst the Commonwealth government.” 42 Pa.C.S. § 761(a)(1). Dr. DeMichele’s
Petition did not seek relief from the Board or the Bureau. Rather, it sought to compel
private parties to comply with the subpoenas. As noted above, Dr. DeMichele’s Petition
did not name any respondents, but she served the Petition upon the Commonwealth, and
the Bureau filed an answer and new matter in response. Such was the basis for the
Commonwealth Court’s finding that the Commonwealth was an indispensable party,
because “it was the only defendant.” Commonwealth Court Opinion at 13 n.15. However,
neither naming nor serving a Commonwealth party alone is sufficient to establish
indispensability. See Ballroom, LLC v. Commonwealth, 984 A.2d 582, 588 (Pa. Cmwlth.
2009) (“[I]t is well settled that merely naming the Commonwealth or a Commonwealth
party as one of several defendants does not necessarily establish this Court’s original
jurisdiction under Section 761.”); see also PSEA, 50 A.3d at 1281-82 (Todd, J.,
concurring) (“[C]ase law clarifies that naming a Commonwealth agency is not enough to
satisfy the jurisdictional requirement; the agency must also be an indispensable party.”).
This Court has set forth several factors to consider when inquiring as to the
indispensability of a party:
1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
[J-98-2018] - 11
4. Can justice be afforded without violating the due process rights of absent
parties?
CRY, 640 A.2d at 375 (quoting Mechanicsburg Area Sch. Dist. v. Kline, 431 A.2d 953,
956 (Pa. 1981)).
Applying CRY’s factors here, we conclude that the Commonwealth is not an
indispensable party to Dr. DeMichele’s enforcement action. In responding to Dr.
DeMichele’s Petition, the Bureau did not assert its own rights, but, rather, questioned the
validity of the subpoenas absent a court order or M.R.’s consent to the release of her
records, and advanced concerns over M.R.’s right to maintain confidentiality in her
medical records. That is, the Bureau argued on behalf of M.R.’s rights and interests, not
its own. The Board did not participate at all. Although the Commonwealth may have a
generalized interest in issues surrounding the enforcement of subpoenas and the
protection of privileged material, the Commonwealth’s interests are not essential to a
determination of the subpoenas’ validity and enforceability. As such, the
Commonwealth’s interests in this matter are too attenuated to warrant a finding that either
the Board or the Bureau is indispensable to this action between private parties.
Dr. DeMichele did not bring this action against the Commonwealth; she sought
enforcement of the subpoenas against four private individuals and one private entity in
order to obtain evidence in the sole possession of those private parties. The
Commonwealth, as M.R. notes, “had not received any subpoenas and therefore could not
be sued for failure to comply with them.” Supplemental Brief for M.R. at 6. Accordingly,
the Commonwealth Court’s conclusion that the Commonwealth “was the only defendant”
lacks support. Commonwealth Court Opinion at 12 n.15. This was not an action against
the Commonwealth government, and original jurisdiction therefore did not lie in the
Commonwealth Court under 42 Pa.C.S. § 761(a)(1).
[J-98-2018] - 12
We find no support for the Commonwealth Court’s conclusion that jurisdiction was
established under Subsection 422.9(c) of the MPA. That subsection provides as follows:
(c) Subpoena power.--The board shall have the authority to issue
subpoenas, upon application of an attorney responsible for representing the
Commonwealth in disciplinary matters before the board, for the purpose of
investigating alleged violations of the disciplinary provisions administered
by the board. The board shall have the power to subpoena witnesses, to
administer oaths, to examine witnesses and to take testimony or compel the
production of books, records, papers and documents as it may deem
necessary or proper in and pertinent to any proceeding, investigation or
hearing held by it. Medical records may not be subpoenaed without consent
of the patient or without order of a court of competent jurisdiction on a
showing that the records are reasonably necessary for the conduct of the
investigation. The court may impose such limitations on the scope of the
subpoena as are necessary to prevent unnecessary intrusion into patient
confidential information. The board is authorized to apply to
Commonwealth Court to enforce its subpoenas.
63 P.S. § 422.9(c) (emphasis added).
This statutory subsection pertains exclusively to the subpoena powers of the
Board. It confers no such prerogative upon private parties. Had the Board sought to
enforce a subpoena under Subsection 422.9(c), it would have been “authorized to apply
to Commonwealth Court” to do so, id., and original jurisdiction would lie therein pursuant
to 42 Pa.C.S. § 761(a)(4). That is not the case here.
Although not addressed by the Commonwealth Court in this case, investigatory
subpoena power in disciplinary matters is further contemplated by 63 P.S. § 2202, the
statutory section preceding the section upon which the hearing examiner relied in issuing
the subpoenas, 63 P.S. § 2203. See supra n.2. Section 2202 provides:
The General Counsel or his designee shall have the power and his duty
shall be to issue subpoenas upon application of an attorney responsible for
representing the Commonwealth in disciplinary matters before a licensing
board or commission for the purpose of investigating alleged violations of
the disciplinary provisions administered by a licensing board or commission,
provided that, if their disclosure is subject to a privilege provided by law,
patient or client records may not be subpoenaed without the consent of the
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patient or client or without order of a court of competent jurisdiction showing
that the records are reasonably necessary for the conduct of the
investigation. The court may impose such limitation on the scope of the
subpoena as may be necessary to prevent unnecessary intrusion into
patient or client confidential information. The attorney responsible for
representing the Commonwealth in disciplinary matters before a licensing
board or commission is authorized to apply to Commonwealth Court to
enforce the subpoenas. Nothing in this clause shall be construed to excuse
a person from producing documents and records as requested by a
licensing board or commission under any other provision of law.
63 P.S. § 2202 (emphasis added).
Like the above-referenced provision of the MPA, Section 2202 provides no
authorization to private individuals to seek enforcement of subpoenas against other
private parties in the Commonwealth Court’s original jurisdiction. Rather, Section 2202
states that, with regard to the contemplated subpoenas, the “attorney responsible for
representing the Commonwealth in disciplinary matters before a licensing board or
commission is authorized to apply to Commonwealth Court to enforce the subpoenas.”
Id.
Neither the Board nor an attorney representing the Commonwealth sought to
enforce the subpoenas at issue. Accordingly, it is plain that the above-cited statutes do
not apply, and that original jurisdiction did not thereunder lie in the Commonwealth Court
pursuant to 42 Pa.C.S. § 761(a)(4).7
7 Chief Justice Saylor opines that the “issue presented does not relate to subject
matter jurisdiction, but rather, concerns standing” under Subsection 422.9(c) of the MPA.
Dissenting Opinion at 1 (Saylor, C.J.) (emphasis omitted). We respectfully disagree. The
Commonwealth Court is not a court of general jurisdiction; any action commenced therein
must fall within a statutory provision which grants that court subject matter jurisdiction.
See PA. CONST. art. 5, § 4 (“The Commonwealth Court shall . . . have such jurisdiction as
shall be provided by law.”); 42 Pa.C.S. §§ 761-64 (setting forth the jurisdiction of the
Commonwealth Court). The Chief Justice focuses upon the MPA to the exclusion of the
Commonwealth Court’s original jurisdiction statute. Because Subsection 422.9(c) of the
MPA does not authorize a private party to commence a subpoena enforcement action
against other private parties in the Commonwealth Court, jurisdiction over this matter is
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Finding no basis for the exercise of the Commonwealth Court’s subject matter
jurisdiction, we are constrained to vacate the court’s order. We appreciate Dr.
DeMichele’s arguments that recourse to various other tribunals may be inconvenient and
inefficient. Such piecemeal litigation certainly is less than ideal. However, the
jurisdictional statutes are unambiguous, and we may not alter or improve upon their plain
language.
The order of the Commonwealth Court is vacated.
Justices Todd, Donohue, Dougherty and Mundy join the opinion.
Justices Dougherty and Mundy file concurring opinions.
Justice Baer concurs in the result.
Chief Justice Saylor files a dissenting opinion
not “vested in the Commonwealth Court” by the MPA. 42 Pa.C.S. § 761(a)(4). As it
concerns the MPA, that is the end of the inquiry.
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