R. Swede, Admin. of the Estate of T.A. Kelly v. B. Layton, CRNP ~ Appeal of: DOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Swede, Administrator :
of the Estate of Tracy Ann Kelly :
:
v. :
:
Barbara Layton, CRNP, Medical :
Associates of Bridesburg, P.C., and :
Aria Health d/b/a Jefferson :
Torresdale Hospital :
:
Appeal of: Department of : No. 1349 C.D. 2022
Transportation : Submitted: April 11, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 10, 2024
The Department of Transportation (DOT) appeals from the
Philadelphia County Common Pleas Court’s (trial court) November 18, 2022 order
granting Aria Health d/b/a Jefferson Torresdale Hospital’s (Aria Health) Second
Motion for Sanctions and to Enforce Order Against DOT and directing DOT to
produce all documents submitted by Aria Health regarding Tracy Ann Kelly
(Decedent) within 10 days of the order’s date, and remit $5,000.00 to counsel for
Raymond Swede, Administrator of Decedent’s Estate (Estate), for intentionally
disregarding 3 separate discovery orders issued by the trial court. DOT presents two
issues for this Court’s review: (1) whether the trial court erred as a matter of law by
holding that its November 18, 2022 order was not a final order; and (2) whether the
trial court abused its discretion and erred as a matter of law by holding DOT in
contempt for refusing to comply with the trial court’s orders that would have
required DOT to violate Sections 1518(d) and (e), and 1519(b) of the Vehicle Code,
75 Pa.C.S. §§ 1518(d), (e), 1519(b). After review, this Court reverses.
On December 29, 2018, Decedent presented herself to Aria Health’s
emergency department (Emergency Department) due to a brief loss of
consciousness. During the Emergency Department visit, the attending physician ran
tests on Decedent, diagnosed her with having a seizure, and referred her to a
neurologist. During the visit, the attending physician also filled out paperwork
documenting the findings, which the attending physician submitted to DOT. On
May 23, 2019, Decedent suffered a myocardial infarction at age 42, which was
attributed to a left anterior descending artery blockage. Decedent died on July 7,
2019, after a prolonged hospital stay.
On August 12, 2020, the Estate filed a medical malpractice action
against Barbara Layton, CRNP, Medical Associates of Bridesburg, P.C., and Aria
Health (collectively, Appellees) for Decedent’s alleged misdiagnosis. On March 3,
2022, the Estate served a subpoena on DOT seeking Decedent’s records, which
included but were not limited to, her medical records and physician correspondence.
In response to the subpoena, DOT claimed that it was not permitted to release
Decedent’s records. On May 2, 2022, the Estate filed with the trial court a Motion
to Enforce the Subpoena Served on DOT. On June 10, 2022, after oral argument,
the trial court entered an order compelling DOT to produce all documents submitted
by Aria Health regarding Decedent within 20 days of the order date.
After DOT failed to comply with the trial court’s June 10, 2022 order,
the Estate filed with the trial court a Motion for Sanctions and to Enforce Order
Against DOT, which the trial court subsequently granted on October 3, 2022, therein
directing DOT to produce the responsive documents within 10 days or suffer
sanctions upon further application to the trial court. After DOT’s noncompliance
2
with the trial court’s June 10 and October 3, 2022 orders, on October 25, 2022, the
Estate filed a Second Motion for Sanctions and to Enforce Order Against DOT,
which the trial court granted on November 18, 2022, compelling DOT to produce all
documents regarding Decedent within 10 days and to remit $5,000.00 to the Estate’s
counsel for disregarding discovery orders issued by the trial court.
DOT appealed to this Court.1 On December 8, 2022, the trial court
directed DOT to file a Statement of Errors Complained of on Appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement).
On December 20, 2022, DOT filed its Rule 1925(b) Statement. On May 17, 2023,
the trial court filed its opinion pursuant to Rule 1925(a).
DOT first argues that the trial court erred as a matter of law by holding
that its November 18, 2022 order was not a final order. Specifically, DOT contends
that because the November 18, 2022 order was a civil contempt order, it was
immediately appealable. The Estate rejoins that DOT cannot meet the three-pronged
test that is necessary to establish a collateral order for the purpose of permitting an
appeal. See Rule 313. The Estate asserts that the imposition of a sanction for
repeated discovery order violations does not involve a right that is too important to
be denied review, and no interests would go unprotected if an immediate appeal was
1
“[This Court’s] review when considering an appeal from a contempt
order is limited to . . . [determining] whether the trial court abused
its discretion or committed an error of law.” Dep’t of Env[’t] Res.
v. Gentile, 683 A.2d 711, 712 (Pa. Cmwlth. 1996). “When
considering an appeal from a contempt order, great reliance must be
placed upon the discretion of the trial judge.” Mulligan v. Piczon,
739 A.2d 605, 608 n.4 (Pa. Cmwlth. 1999), aff’d, . . . 779 A.2d 1143([Pa.] 2001).
Off. of Att’y Gen. v. Harth & Sons Gen. Contracting, LLC, 306 A.3d 977, 979 n.5 (Pa. Cmwlth.
2023) (quoting W. Pittston Borough v. LIW Invs., Inc., 119 A.3d 415, 421 n.9 (Pa. Cmwlth. 2015)).
3
not granted; thus, the trial court’s November 18, 2022 order is neither final,
collateral, nor appealable and this Court lacks jurisdiction to review the order.
However, this Court has explained:
An order finding a party in civil contempt may be
appealable as a final order if the order executes
on sanctions which were imposed. DeMasi v.
DeMasi, . . . 597 A.2d 101 ([Pa. Super.] 1991) . . . .
However, if the sanctions are not yet executed
upon, but may be imposed in the future, the order
is interlocutory. Id.Twp. of Concord v. Concord Ranch, Inc., 664 A.2d 640,
650 (Pa. Cmwlth. 1995) (emphasis added).
“‘[F]or a contempt order to be properly appealable,’ it is
necessary that the order ‘impose sanctions on the
contemnor and that no further court order be required
before the sanctions take effect.’” Porter v. Nikita
Lodging, Inc., 274 A.3d 1272, 1282 (Pa. Super. 2022)
(quoting Glynn v. Glynn, 789 A.2d 242, 248 (Pa. Super.
2001)) (underline emphasis added; bold emphasis
omitted); see also In re Est. of Disabato, 165 A.3d 987,
993-94 (Pa. Super. 2017) (citing Rhoades v. Pryce, 874
A.2d 148, 151 (Pa. Super. 2005)) (“It is well[ ]settled that
‘until sanctions are actually imposed, an [o]rder
declaring a party in contempt is interlocutory and not
appealable.’”) (emphasis added); Jackson Twp.
Supervisors v. Est. of Gresh (Pa. Cmwlth. No. 1942 C.D.
2016, filed Dec. 12, 2017), slip op. at 14-15 . . . (“Unless
sanctions or imprisonment are imposed, an order declaring
a party in contempt is interlocutory and not
appealable.”).[2]
Off. of Att’y Gen. v. Harth & Sons Gen. Contracting, LLC, 306 A.3d 977, 980 (Pa.
Cmwlth. 2023).
2
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
4
Here, the trial court’s November 18, 2022 order provided, in pertinent
part: “[DOT] shall produce all documents submitted by Aria Health regarding
[Decedent] within ten (10) days of the date of this [o]rder and remit $5,000[.00] to
[the Estate’s] counsel for intentionally disregarding three separate discovery orders
issued by th[e trial c]ourt.” Reproduced Record at 248a (emphasis added). Because
the trial court’s order imposed a $5,000.00 sanction against DOT, the trial court’s
November 18, 2022 order is a final, appealable order. Accordingly, the trial court
erred by concluding otherwise.
DOT next argues that the trial court abused its discretion and erred as a
matter of law by holding DOT in contempt for refusing to comply with the trial
court’s orders that would have required DOT to violate Sections 1518(d) and (e),
and 1519(b) of the Vehicle Code. Specifically, DOT contends that a report that is
submitted to DOT in accordance with Section 1518(b) and (c) of the Vehicle Code
may not be disclosed for use in private litigation, including a medical malpractice
lawsuit. The Estate rejoins that the trial court neither abused its discretion nor
committed an error of law when it issued a sanctions order against DOT where DOT
blatantly ignored two separate trial court orders directing DOT to produce
documents to the Estate. The Estate asserts that a sanction is entirely reasonable
given the time and effort afforded by the Estate’s counsel in filing three discovery
motions, and the time and effort afforded by the trial court in repeatedly reviewing
the matter.
Initially,
[i]t is well established that “[c]ourts possess an inherent
power to enforce their orders by way of the power of
contempt.” Dep[’t] of Env[’t] Prot[.] v. Cromwell [Twp.],
Huntingdon [Cnty.], . . . 32 A.3d 639, 653 ([Pa.] 2011)
(quoting Brocker v. Brocker, . . . 241 A.2d 336, 338 ([Pa.]
1968)). This power includes “broad discretion in
fashioning and administering a remedy for civil
5
contempt.” Commonwealth v. Honore, 150 A.3d 521,
526 (Pa. Cmwlth. 2016) (Covey, J., single judge op.)
([quoting] Mulligan v. Piczon, 739 A.2d 605, 611 (Pa.
Cmwlth. 1999)).
The purpose of civil contempt is “to compel performance
of lawful orders,” and the burden is generally on the
complaining party to prove noncompliance with the court
order. Honore, 150 A.3d at 526. Mere noncompliance
with a court order is insufficient to prove civil contempt.
Id. The complainant must prove: “(1) that the contemnor
had notice of the specific order or decree which he is
alleged to have disobeyed; (2) that the act constituting
the contemnor’s violation was volitional; and (3) that
the contemnor acted with wrongful intent.” Id.(quoting Epstein v. Saul Ewing, LLP, 7 A.3d 303, 318 (Pa.
Super. 2010)). Further, an appellate court will reverse a
trial court’s order denying a contempt petition “only upon
a showing that the trial court misapplied the law or
exercised its discretion in a manner lacking reason.”
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super.
2012).
Joos v. Bd. of Supervisors of Charleston Twp., 237 A.3d 624, 634 (Pa. Cmwlth.
2020) (emphasis added).
Section 1518 of the Vehicle Code provides in relevant part:
(a) Definition of disorders and disabilities.--The
Medical Advisory Board shall define disorders
characterized by lapses of consciousness or other mental
or physical disabilities affecting the ability of a person to
drive safely for the purpose of the reports required by this
section.
(b) Reports by health care personnel.--All
physicians, . . . physician assistants, certified registered
nurse practitioners and other persons authorized to
diagnose or treat disorders and disabilities defined by the
Medical Advisory Board shall report to [DOT], in writing,
the full name, date of birth and address of every person
over 15 years of age diagnosed as having any specified
disorder or disability within [10] days.
6
(c) Responsibility of institution heads.--The person in
charge of every mental hospital, institution or clinic, or
any alcohol or drug treatment facility, shall be responsible
to assure that reports are filed in accordance with
subsection (b).
(d) Confidentiality of reports.--The reports required by
this section shall be confidential and shall be used solely
for the purpose of determining the qualifications of any
person to drive a motor vehicle on the highways of this
Commonwealth.
(e) Use of report as evidence.--No report forwarded
under the provisions of this section shall be used as
evidence in any civil or criminal trial except in any
proceeding under [S]ection 1519(c) [of the Vehicle Code]
(relating to determination of incompetency).
75 Pa.C.S. § 1518 (italic emphasis added).
Section 1519(b) of the Vehicle Code mandates:
Reports received by [DOT] for the purpose of assisting
[DOT] in determining whether a person is qualified to be
licensed and reports of examinations authorized under
this subchapter are for the confidential use of [DOT] and
may not be divulged to any person or used as evidence
in any trial except that the reports and statistics and
evaluations used by [DOT] in determining whether a
person should be required to be examined under this
subchapter shall be admitted in proceedings under
[S]ection 1550 [of the Vehicle Code, 75 Pa.C.S. § 1550]
(relating to judicial review).
75 Pa.C.S. § 1519(b) (emphasis added).
This Court addressed the above-quoted statutes in Puricelli v.
Department of Transportation (Office of Chief Counsel), 288 A.3d 581 (Pa. Cmwlth.
2023), wherein, it explained:
In interpreting these sections of the Vehicle Code, it is this
Court’s duty to ascertain the intent of the General
Assembly and construe every statute, if possible, in a
manner that gives effect to all of its provisions. [See] 1
Pa.C.S. § 1921. When a statute is clear and free from all
7
ambiguity, we must consider the plain meaning of its
words. [See] [i]d.; Combine v. Workers’ Comp. Appeal
Bd. (Nat’l Fuel Gas Distrib. Corp.), 954 A.2d 776 (Pa.
Cmwlth. 2008). Further, we presume the General
Assembly does not intend results that are absurd,
impossible of execution, or unreasonable. [See]
Hannaberry HVAC v. Workers’ Comp. Appeal Bd.
(Snyder, Jr.), . . . 834 A.2d 524 ([Pa.] 2003).
Here, the intent of the legislature is clear from the
language of the Vehicle Code. In furtherance of the
legislature’s goal of promoting safe highways, []DOT is
tasked with determining whether individuals are
competent to drive and permitted to obtain or retain a
driver’s license. In order to accomplish this task, []DOT
must have access to records pertaining to medical
conditions that could impact an individual’s ability to
safely drive. The legislature specifically indicates in the
statute that these records are to be “confidential.” 75
Pa.C.S. § 1518(d). Such records “may not be divulged to
any person.” 75 Pa.C.S. § 1519(b). Such records are
precluded from being used as evidence in any trial. [See]
75 Pa.C.S. §§ 1518(e) & 1519(b). The General
Assembly’s intent, which is evident from a plain
reading of these statutes, is that medical records
provided to []DOT are solely for the purpose of
assisting []DOT with competency determinations and
for use by []DOT at competency hearings. Otherwise,
such records are required by statute to remain
confidential.
Puricelli, 288 A.3d at 587 (emphasis added).
Because “reports of examinations authorized under [Section 1519 of
the Vehicle Code] are for the confidential use of [DOT] and may not be divulged to
any person[,]” DOT is precluded from providing such records to the Estate. 75
Pa.C.S. § 1519(b). Accordingly, “the trial court misapplied the law or exercised its
discretion in a manner lacking reason[,] Joos, 237 A.3d at 634 (quoting MacDougall,
49 A.3d at 892), by holding DOT in contempt for refusing to comply with the trial
8
court’s orders that would have required DOT to violate Sections 1518(d) and (e),
and 1519(b) of the Vehicle Code.3
For all of the above reasons, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
3
Significantly, the Concurring and Dissenting Opinion (CO/DO) agrees with the Majority
that the portion of the trial court’s order which required DOT to produce the documents was
erroneous and, like the Majority, would reverse the order to produce. The CO/DO maintains that
while it agrees that the trial court erred in ordering DOT to produce the documents, the portion of
the trial court’s order imposing the monetary contempt sanctions should be affirmed because DOT
should have appealed from the trial court’s first two orders, rather than ignore them. First, DOT
did not ignore the trial court’s previous orders. Rather, DOT consistently maintained that the
Vehicle Code precluded it from producing the documents. Second, while the CO/DO maintains
that DOT should have appealed from the trial court’s orders, rather than not comply with the
orders, DOT’s decision not to appeal from the trial court’s orders does not constitute contempt and
certainly was not the basis for the trial court’s finding of contempt. The trial court found DOT in
contempt for disobeying its orders. The law on contempt is clear that “[m]ere noncompliance with
a court order is insufficient to prove civil contempt.” Joos, 237 A.3d at 634. Third, there is no
precedent and the law on contempt does not support the CO/DO’s disposition that where the trial
court erred in ordering certain action, the contempt finding and sanctions may be upheld even
though the court order underlying the contempt ruling was erroneous. “The purpose of civil
contempt is ‘to compel performance of lawful orders[.]’” Id. (quoting Honore, 150 A.3d at 526)
(emphasis added). Fourth, “[t]o sustain a finding of civil contempt, the complainant must prove
certain distinct elements: (1) that the contemnor had notice of the specific order or decree which
he is alleged to have disobeyed; (2) that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful intent.” Stahl v. Redcay, 897 A.2d 478,
489 (Pa. Super. 2006) (quoting In re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super.
2004) (emphasis added)). Here, the trial court ruled that DOT intentionally disregarded its orders;
however, it did not make a finding nor is there any record evidence to support that DOT acted with
wrongful intent. Fifth, sanctions can only be imposed once the noncomplying litigant has the
opportunity to purge the contempt by complying with the court’s order. See Barrett v. Barrett,
368 A.2d 616, 620 (Pa. 1977) (quoting Commonwealth ex rel. Beghian v. Beghian, 184 A.2d 270,
272 (Pa.1962) (“‘The use of the power to enforce compliance is exercised with the objective of
compelling performance and not inflicting punishment.’ In accordance with this principle, [the
Pennsylvania Supreme Court] ha[s] indicated that a court may not convert a coercive sentence into
a punitive one by imposing conditions that the contemnor cannot perform and thereby purge
himself of the contempt.”)). Thus, because there was no opportunity to purge, i.e., DOT was
statutorily prohibited from complying with the erroneous order, there can be no contempt.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Swede, Administrator :
of the Estate of Tracy Ann Kelly :
:
v. :
:
Barbara Layton, CRNP, Medical :
Associates of Bridesburg, P.C., and :
Aria Health d/b/a Jefferson :
Torresdale Hospital :
:
Appeal of: Department of : No. 1349 C.D. 2022
Transportation :
ORDER
AND NOW, this 10th day of September, 2024, the Philadelphia County
Common Pleas Court’s November 18, 2022 order is reversed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Swede, Administrator :
of the Estate of Tracy Ann Kelly :
:
v. : No. 1349 C.D. 2022
Barbara Layton, CRNP, Medical : SUBMITTED: April 11, 2024
Associates of Bridesburg, P.C., and :
Aria Health d/b/a Jefferson Torresdale :
Hospital :
:
Appeal of: Department of :
Transportation :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION
BY SENIOR JUDGE LEADBETTER FILED: September 10, 2024
I fully agree with the Majority that the order under review is a final,
appealable order and that the order to produce should be reversed. However, I would
affirm the trial court’s order holding the Department of Transportation (DOT) in
contempt. As noted by the Majority, DOT refused to comply with two orders
directing that the contested documents be produced. Orders of the court are not
suggestions which litigants are free to ignore if they believe them to be improper. In
a situation such as this where a party is ordered to produce documents which it
believes are privileged, I believe it should appeal that order under the collateral order
rule, not disregard it. Moreover, while the Majority correctly cites the dicta1 in
1
The holding in Puricelli v. Department of Transportation (Office of Chief Counsel), 288
A.3d 581 (Pa. Cmwlth. 2023), was that DOT had no mandatory or ministerial duty to turn over the
requested records and, thus, that mandamus did not lie, a holding with which I do not quarrel.
Puricelli v. Department of Transportation (Office of Chief Counsel), 288 A.3d 581(Pa. Cmwlth. 2023), I believe that language is overbroad and, as dicta, is not
necessarily binding here. Further, I do not find it persuasive. Clearly, Sections
1518(d) and 1519(b) of the Vehicle Code, 75 Pa.C.S. §§ 1518(d) and 1519(b), make
the medical reports at issue confidential and provide that they “may not be divulged
to any person.” However, the specific statutory language does not preclude their use
for all “litigation purposes,” as Puricelli states. Rather the statute mandates that no
such reports “shall be used in evidence in any civil or criminal trial.” In the context
of discovery, Rule 4003.1(b) of the Pennsylvania Rules of Civil Procedure provides
that “[i]t is not ground for objection that the information sought will be inadmissible
at the trial if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.” Pa.R.Civ.P. 4003.1(b). Therefore, while DOT
may not voluntarily turn over such reports, in my view, a trial court, where the
requirements of Rule 4003.1(b) are met and where compelling circumstances are
demonstrated, has the discretion to require production under a strict confidentiality
order. Nonetheless, we do not need to decide that issue here because none of these
factors appear in this case. Hence, I agree with the Majority that the portion of the
order under review which required production of the contested documents was
erroneous.
For the above reasons, I would affirm the order imposing a monetary
sanction for contempt but would reverse the order to produce.
____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
BBL - 2