Farrell, J. v. Regola, R.

J-A07021-16
2016 Pa. Super. 241
J. DOUGLAS FARRELL, ADMINISTRATOR IN THE SUPERIOR COURT OF
OF THE ESTATE OF LOUIS J. FARRELL, PENNSYLVANIA
DECEASED
Appe||ee
v.
ROBERT T. REGOLA, 111ANDJANE1'1E A.
REGOLA, H1s w1FE,AN1) ROBERT T.
REGOLA, 1v
Appellants No. 566 WDA 2015
Appeal from the Order March 11, 2015
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 7977 of 2008
BEFORE: BOWES, MUNDY, AND JENKINS, JJ.
OPINION BY BOWES, J.: FILED NOVEMBER 08, 2016
Robert T. Regola, III, his wife Janette A. Regola, and their son Robert
T. Regola IV (“Bobby”) (collectively “the Regolas") appeal from a March 11,
2015 discovery order. They aver that the order in question requires the
production of materials that are protected by privilege. We agree with their
contentions and reverse.
On July 18, 2008, Appe||ee J. Doug|as Farrell, as administrator of the
Estate of Louis J. Farrell, deceased, instituted this wrongful death and
survival action on behalf of himself and other unnamed heirs by writ of
summons. After being ruled to do so, Mr. Farrell filed a complaint on
December 1, 2008. He averred that the Regolas' negligence was the
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proximate cause of the death of his son Louis at the age of fourteen. The
averments in the complaint were as follows. In December 2003, Mr. Regola
purchased a Taurus-9 millimeter handgun that he kept in his house in an
unlocked black plastic case with a loaded clip next to it. Bobby, a minor
when the gun was purchased, had access to the weapon, and Mr. and Mrs.
Regola were aware that he handled the gun on numerous occasions without
supervision. Bobby showed the weapon to other minors, including Louis.
The allegations leveled in the complaint continued. On July 21, 2006,
Mr. and Mrs. Regola left their home for an overnight visit and asked Louis,
who lived next door, to care for their two dogs. Bobby, then sixteen years
old, was permitted to stay at home, and, on the morning of July 21, 2006,
he went to a local amusement park with his girlfriend. That day, Louis
attended to the dogs. At approximately 10:30 p.m., Bobby returned home
and telephoned his father to inform him that he was safely there.
Approximately twenty minutes later, Bobby telephoned his father again and
told him that the Taurus gun and ammunition were missing.
Mr. Farrell also averred that at 11:00 p.m., Louis called Bobby, and
they arranged to smoke a cigar together outside. Several minutes later,
they met in a wooded area outside the Regola residence and smoked the
cigar. Louis was in possession of Mr. Regola's missing weapon. At 11:20
p.m., Mr. Regola called his brother, Ronald, and asked him to check on
Bobby. Ronald, who lived nearby, arrived at the Regola residence soon
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thereafter. He and Bobby searched the house for the missing handgun and
ammunition, but failed to find it. Ronald telephoned Mr. Regola at about
11:50 p.m., informed him that the gun had not been located, and then left
the Regola residence at about 12:05 a.m. At approximately 8:40 a.m. on
July 22, 2006, Mr. Farrell found Louis' body in the wooded area with a
single, fatal gunshot wound to the head. Mr. Regola's gun was next to
Louis. Mr. Farrell asserted that the Regolas were subject to liability for
Louis' suicide based upon their negligent actions with respect to the gun in
the home.
In their answer and new matter, the Regolas denied that the gun was
always kept in their house, that Bobby had access to the gun, and that he
showed it to other minors. The Regolas also presented a different version of
the events of July 21, 2006, as follows. After Bobby and Mr. Regola became
aware that the gun was not in the case when Bobby returned from the
amusement park, they discussed the matter and concluded that the weapon
was in the possession of Mr. Regola's sister at her lake house. Bobby did
not smoke a cigar with Louis that night and, in fact, never was in Louis'
company at any time on July 21, 2006. When Louis and Bobby spoke on the
telephone at approximately 11:00 p.m., Bobby asked Louis if he had gone
upstairs where the gun was kept, and Louis responded that he had not.
Ronald went to the Regola home solely to check on Bobby, and neither
Ronald nor Bobby searched for the gun that night.
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In their new matter, the Regolas averred that Louis had taken the gun
without their knowledge and permission and that he was allowed inside their
home solely for the purpose of caring for their dogs. Additionally, the
autopsy report indicated that Louis died of a single gunshot to the head, and
the Pennsylvania State Police conducted an investigation into the death.
They performed DNA analysis on the Taurus gun found near to the body,
finding that Louis' DNA matched the DNA found on the grip of the gun and
no DNA from Bobby was on that weapon. The police tested Bobby's hands
and found no gunshot residue on them and also found no proof that anyone
was with Louis at the time of his demise. The Office of the Coroner of
Westmoreland County ruled that Louis' death was a suicide.
The record herein indicates that Mr. Regola faced criminal charges in
connection with the events surrounding Louis' death. Our review of the
public docket sheet pertaining to Mr. Regola's prosecution establishes that
he was represented by Charles J. Porter, Esquire, and was charged with
permitting a minor to possess a gun, reckless endangerment, and, in
connection with his testimony at the coroner's inquest, perjury and false
swearing. In 2008, a jury acquitted Mr. Regola of all charges.
The present civil matter proceeded to discovery. Mr. Farrell
propounded interrogatories and requests for production of documents upon
the Regolas. The Regolas refused to respond to interrogatory number forty-
nine, which consisted of the following:
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49. Did you seek and/or obtain any type of medical care or
treatment, including but not limited to mental health care and
treatment, as a consequence of and/or in any way related to the
events that took place on July 21, 2006 through July 22, 2006
and for which this lawsuit has been brought? This Interrogatory
includes but is not limited to medical care or treatment you
sought or obtained from your family physician as well as any
type of psychiatric care or treatment, psychological counseling
and treatment and/or family counseling. If so, please provide the
following information:
(a) Name and address of person and facility from
which treatment was sought and/or obtained;
(b) Dates upon which treatment was sought and/or
provided;
(c) Description of the treatment sought and /or
provided; and
(d) Reason for seeking and/or obtaining the
treatment.
Sub-paragraph (e) of Interrogatory No. 49
requested copies of records from each provider
identified.
Motion to Compel, 5/30/14, at 2. They maintained that this interrogatory
was not reasonably calculated to lead to the discovery of admissible
evidence. In addition, the Regolas objected to the request that they produce
documents identified in paragraphs eleven, twelve, and thirteen of Mr.
Farrell's request for production of documents. In those paragraphs, Mr.
Farrell sought information about Mr. Regola's criminal trial, including Mr.
Regola's handwritten notes.
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Mr. Farrell filed a motion to compel answers to the interrogatories and
requests for production of documents. In that motion, Mr. Farrell pointed to
Mrs. Regola's deposition testimony that she sought counseling after the
incident, but could not recall the providers she consulted eight years earlier,
as the basis for compelling her to answer this interrogatory. Id. at 3.
In his order dated March 10, 2014, the Honorable Gary P. Caruso, who
retired shortly thereafter, granted Mr. Farrell's motion to compel answers to
interrogatories and request for production of documents. The order stated
in relevant part:
1. The Motion to Compel a response to Interrogatory 49
and Document Request is granted to the extent that the
defendant, Janette Regola, shall respond to Interrogatory
49 (a), (b), (c) and (d). In this regard, it is further
Ordered that the defendant, Janette Regola, conduct
further and more extensive investigation to
determine the name and occupation of the provider
of any counseling or mental health treatment
required in connection with this matter. This
investigation shall include, but not be limited to, obtaining
insurance documentation that would reveal the name of
such providers; and also an examination of checking
account statements to determine if any such providers are
listed as payee. The plaintiff shall thereafter report to the
court within 20 days of the receipt of this Order setting
forth the efforts undertaken to determine the information
requested by Interrogatory No. 49 (a), (b), (c) and (d).
With regard to Interrogatory No. 49 (e) and Request
for Production No. 13, as they pertain to Janette
Regola, a ruling on the Motion to Compel production
of this requested information will await the
responses to Interrogatory No. 49 (a),(b), (c) and
(d).
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3. With regard to the Motion to Compel production of
documents requested by the Plaintiffs' Document Request
Nos. 11, 12, and 13, directed to the Defendant, Robert
Regola, III, specifically all notes taken by said Defendant
at his criminal trial and/or any depositions in this matter,
the Defendants shall produce the requested
documentation; or in the alternative the counsel for
the defendant shall prepare a privilege log for
inspection by Plaintiffs' counsel and the court.
Order of Court, 3/10/14, at 1-2 (emphases added).
Thus, the order did not require disclosure of the requested records.
Instead, it compelled Mrs. Regola to reveal the name of her mental health
provider and indicated that a ruling on whether the Regolas had to answer
interrogatory number forty-nine would follow. Similarly, the order makes
clear that Mr. Regola did not have to release any notes so long as he
established that they were subject to the attorney-client privilege.
Even though paragraphs eleven, twelve, and thirteen of the request
for production of documents were limited to matters pertaining to Mr.
Regola's criminal trial, the March 10, 2014 order also discussed whether Mr.
Regola had to produce notes that he took during civil depositions conducted
in this lawsuit. The parties herein indicate that a hearing was held on the
motion to compel that resulted in the issuance of the March 10, 2014 order.
We surmise that the question concerning Mr. Regola's note-taking in this
matter arose at the hearing.
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The Regolas complied with the March 10, 2014 order by writing a
letter to Judge Caruso outlining that Mrs. Regola searched her health
records, which revealed that on May 19, 2007, June 13, 2007 and June 19,
2007, she sought mental health treatment at Kreinbrook Psychological
Services. That organization employed Dr. Dennis Kreinbrook, a licensed
psychologist. Defendants' Reply to Plaintiff's Motion to Compel Defendants
to Comply with the March 10, 2014 Discovery Order, 6/11/14, at Exhibit 3.
In the letter, the Regolas indicated that Mrs. Regola saw Dr. Kreinbrook on
May 18, 2007, and a licensed clinical social worker on June 13, 2007, and
June 19, 2007. In the same letter, the Regolas invoked the
psychologist/patient privilege as to the records of her treatment at
Kreinbrook Psychological Services.
On April 8, 2014, as required by the March 10, 2014 order, Appellant
filed a privilege log with respect to Mr. Regola's notes. The log described the
privileged document as handwritten notes taken by Mr. Regola during
depositions taken herein on January 20, 21, and 22, 2014, and the privilege
asserted was attorney-client. The log stated that the “notes were taken
pursuant to advice of counsel and were provided to counsel only. The notes
generally contain questions and observations Mr. Regola shared with his
counsel.” Privilege Log, 4/8/14, at 1.
With respect to the notes taken during the criminal trial, Mr. Regola
submitted a supplemental response to Mr. Farrell's demand that he produce
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them. That response was a letter from Mr. Regola's counsel during his
criminal trial, Mr. Porter, who said that he was “in possession of notes taken
by Mr. Regola during the course of my representation of him on the criminal
charges that were brought against him." Motion to Compel, 5/30/14, at
Exhibit F (Letter from Charles J. Porter, 4/7/14, at 1.) Mr. Porter continued
that it was his standard practice to “advise clients to take notes and provide
me with those notes” and that the notes “squarely fall within the
attorney/client privilege.” Id. He refused to supply Mr. Regola's notes.
On May 30, 2014, Mr. Farrell presented another motion to compel
compliance with the March 10, 2014 discovery order. The Honorable
Anthony G. Marsili, who had been assigned this matter following Judge
Caruso's retirement, resolved this motion. Mr. Farrell complained that Mrs.
Regola had refused to supply the records of the medical or psychiatric
treatment she obtained after the incident. Specifically, Mr. Farrell demanded
to see any statements that Mrs. Regola made during counseling about the
events surrounding the subject matter of this lawsuit.
Mr. Farrell also disputed that the attorney-client privilege was
applicable to the notes that Mr. Regola took during the depositions. Mr.
Farrell relied upon the fact that, during his deposition, Mr. Regola said that
he did not know why he was taking the notes, and, when asked what he
would do with them, Mr. Regola responded, “Probably nothing." Motion to
Compel, 5/30/14, at Exhibit K (Deposition Transcript of Robert Regola III, at
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103). Mr. Farrell acknowledged that he attempted to take possession of Mr.
Regola's notes after each of the three depositions and that “[c]ounsel for
Defendant Regola III stated that Defendant had taken the notes at counsel's
request and that the notes would not be produced[.]" Motion to Compel,
5/30/14, at 8.
In response to Mr. Farrell's May 30, 2014 motion to compel, a June 11,
2014 order was entered. Judge Marsili ordered Mr. Regola to waive his
attorney-client privilege with Mr. Porter and obtain the notes in Mr. Porter's
possession. Judge Marsili also gave the Regolas two options: to either
produce all of Mrs. Regola's medical records from Kreinbrook Psychological
Services as well as all of Mr. Regola's notes or produce a “specific detailed
privilege log identifying [medical records] that are being withheld” and
“identifying the notes that are being withheld.” Order of Court, 6/11/14, at
2.
Mrs. Regola, in compliance with the June 11, 2014 order, obtained all
of her treatment records from Kreinbrook Psychological Services. She then
filed two detailed privilege logs setting forth the dates and nature of the
documents that she received. The first privilege log pertained to materials
authored by Kreinbrook Psychological Services and included notes from a
May 19, 2007 clinical interview and June 1, 2007 progress notes. Mrs.
Regola asserted that the materials were privileged under the
psychiatrist/psychologist-patient privilege. The second privilege log
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contained documents authored by Mark R. Jones, a licensed clinical social
worker, on June 19, 2007, and June 13, 2007, and July 7, 2014. The
documents in question included notes from a treatment session, a letter to
Mr. Regola's primary care physician discussing information that Mrs. Regola
gave Mr. Jones during their treatment session, an evaluation containing
information provided by Mrs. Regola during the session, and a letter
transmitting Mrs. Regola's records to her. Mrs. Regola asserted that the
materials authored by Mr. Jones were privileged under the
psychiatrist/psychologist-patient privilege.
Mr. Regola complied with the June 11, 2014 order by filing a
supplemental privilege log about the notes that he took during the
depositions conducted in the instant case. He took handwritten notes during
the depositions of Mrs. Regola, Bobby, Mr. Farrell, and Lauren Farrell. In the
log, the Regolas asserted that the attorney-client privilege had not been
waived and applied to these notes, explaining that “Mr. Regola is a client of
Attorney [Arthur J.] Leonard, who represents the Regolas in this lawsuit."
Supplemental Privilege Log Regarding Notes Taken by Robert T. Regola, III
During the Depositions of January 20-22, 2014, 7/11/14, at 1-2. The log
continued that the “notes were communicated to Attorney Leonard only,"
that they “relate to the deposition" in question, and that the notes “were
communicated to Attorney Leonard for the purpose of securing assistance in
this ongoing legal matter." Id.
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Additionally, Mr. Regola obeyed the June 11, 2014 order by obtaining
the notes held by Mr. Porter and giving them to Mr. Leonard. There were
five sets of handwritten notes, all prepared by either Mr. Regola or Mr.
Porter “in anticipation of criminal trial." Privilege Log Regarding Notes Taken
By Robert T. Regola, III During The Course Of The Criminal Matter, 8/11/14,
at 1-2. The privilege asserted was the attorney-client privilege, which the
Regolas stated had not been waived. They delineated that Mr. Regola was
the client of Mr. Porter and Mr. Leonard, and that the notes were
communicated only to those two attorneys. Furthermore, “Mr. Regola's
notes were taken at the direction of Attorney Porter and were made in the
course of Attorney Porter's representation of Mr. Regola in his criminal case
for the purpose of securing legal assistance in that matter." Id. The
Regolas continued that Mr. Porter's notes contained his legal impressions
conclusions, opinions, and other protected material.
On January 9, 2015, Mr. Farrell filed a motion to compel. Mr. Farrell
asserted a total right to the entire contents of all the documents in question,
or, in the alternative, demanded in camera review. Mr. Farrell again
specifically sought any communications that Mrs. Regola made during
therapy or that Mr. Regola made to his attorneys so the extent the
communication was about the events at issue in this lawsuit. After the
Regolas filed their response, the trial court issued the following order:
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1. Defendants are hereby DIRECTED to submit to the
Court, on or before Friday, April 17, 2015:
a) any and all of Defendant Janette Regola's
psychiatric records from mental health visits
conducted pursuant to the incident in question;
b) and, any and all of Defendant Robert Regola
III's handwritten notes taken during the civil
depositions and during his criminal trial.
The Court will perform said in camera review thereafter.
2a. The Court notes that during said in camera review it
will look for specific historical statements in the mental
health records made by Defendant Janette Regola
regarding the incident giving rise to this case.
2b. As a result of Plaintiff not specifically identifying the
information requested in the Court's review of Defendant Robert
Regola, III's handwritten notes taken during the civil
depositions and during his criminal trial, the Court in its in
camera review will look for relevant evidence and
statements regarding the incident giving rise to this case.
Order of Court, 3/11/15, at 4 (emphases added).
Appellants filed this appeal from the March 11, 2015 order, claiming
that the materials in question are absolutely privileged and not subject to in
camera review. They assert the psychologist-patient privilege in connection
with Mrs. Regola's counseling sessions and the attorney-client privilege as to
all the notes taken by Mr. Regola. Specifically, Appellant raises three issues
for our review:
I. Whether the trial court erred in ordering the production of
privileged mental health records, for an in camera review, when
Janette Regola's psychiatric records are clearly subject to the
psychiatric/psychologist relationship as defined under Pa.R.C.P.
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II.
III.
Rule 4003.1(a); 42 Pa.C.S.A. § 5944, and Carrie ]affee,
Special Administrator for Ricky Allen, Sr., deceased v.
Mary Lu Redman, et al., 518 U.S. 1 (1996).
Whether the trial court erred in ordering the production of
privileged attorney-client protected information, as defined by
Pa.R.C.P. Rule 4003.1(a); 42 Pa.C.S. § 5928; and 42 Pa.C.S. §
5916, for an in camera review, when Mr. Regola's III's notes
were taken at the behest of his attorneys and during litigation
proceedings.
These errors are immediately appealable under Pennsylvania
Rule of Appellate Procedure 313.
Appellant's brief at 5.
presented herein. As a general rule, this Court has jurisdiction over appeals
taken from final orders only. Angelichio v. Myers, 110 A.3d 1046, 1048
(Pa.Super. 2015); see Pa.R.A.P. 341.
jurisdiction over this appeal pursuant to Pa.R.A.P. 313, which embodies the
Since it implicates our jurisdiction, we first address the third issue
collateral order doctrine and states
(a) General Rule. An appeal may be taken as of right from a
collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from
and collateral to the main cause of action where the right
involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably
lost.
Pa.R.A.P. 313.
March 11, 2015 order is not appealable in that it requires only in camera
Mr. Farrell has devoted nearly his entire brief to the position that the
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The Regolas maintain that we have
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review and the Regolas' privilege assertions were too vague. Appe||ee's brief
at 7-11. Mr. Farrell insists that the asserted privileges will not be
irretrievably lost since only in camera review was permitted. Mr. Farrell's
position is inconsistent with the pertinent law. The courts of Pennsylvania
have uniformly held that, if an appellant asserts that the trial court has
ordered him to produce materials that are privileged, then Rule 313 applies.
Recently, in Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa.Super.
2015), this Court addressed two pretrial appeals of discovery orders entered
in a medical malpractice case. The appellant invoked the peer-review and
attorney-client privileges as to the materials that the trial courts ruled were
discoverable by the opposing party. We concluded that we had jurisdiction,
stating, “When a party is ordered to produce materials purportedly subject
to a privilege, we have jurisdiction under Pa.R.A.P. 313[.]" Id. at 1016 n. 1
(emphasis added).
The ability to immediately appeal orders requiring the divulgence of
materials alleged covered by a privilege derives from Ben v. Schwartz, 729
A.2d 547 (Pa. 1999). Therein, our Supreme Court held that, when a trial
court refuses to apply a claimed privilege, the decision is appealable as a
collateral order. In Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), the
Court ruled that this precept survived Mohawk Industries, Inc. v.
Carpenter, 558 U.S. 100 (2009), wherein the United States Supreme Court
elected to disallow such appeals in the federal system. The Harris Court re-
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affirmed that “orders overruling claims of privilege and requiring disclosure
are immediately appealable under Pa.R.A.P. 313.” Harris, supra at 248.
If materials are privileged, no one, not even a trial judge, may have
access to them. Commonwealth v. Kyle, 533 A.2d 120, 129 (Pa.Super.
1987) (holding that the defendant was “not entitled to examine the victim's
post-assault psychotherapy records or to have the trial court review such
records in camera on the basis that the records might possibly reveal
statements of fact that differ from the anticipated testimony of the victim at
trial); accord Commonwealth v. Simmons, 719 A.2d 336 (Pa.Super.
1998) (records that are privileged under psychiatrist/psychologist-patient
privilege are not subject to in camera review by the trial court); see also
Commonwealth v. Berger, 96 A.3d 1049 (Pa. 2014 (examining propriety
of order that required in camera review of materials that were purportedly
subject to a privilege).
Even more egregious herein is the fact that the trial court clearly
indicated that it intended to disseminate to Mr. Farrell anything said by the
Regolas if their communications related to the events surrounding his son's
death. If the communications in question are privileged, any dissemination
of their contents to Mr. Farrell would violate the applicable privilege. The
order sets forth the court's intent to give Mr. Farrell information in which the
Regolas assert established and honored privileges. It is unquestionably
immediately appealable.
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Having determined that we have jurisdiction over this appeal, we now
examine the appropriate standard of review. Herein, we are tasked with
reviewing whether the psychiatrist/psychologist-patient privilege applies to
Mrs. Regola's counseling sessions at Kreinbrook Psychological Services,
including her sessions with the psychologist and clinical social worker,1 and
1 We observe that a clinical social worker is defined as follows by the
American Board of Examiners in Clinical Social Work:
Clinical social work is a healthcare profession based on
theories and methods of prevention and treatment in providing
mental-health/healthcare services, with special focus on
behavioral and bio-psychosocial problems and disorders. Clinical
social work's unique attributes include use of the person-in-
environment perspective, respect for the primacy of client rights,
and strong therapeutic alliance between client and practitioner.
With 250,000 practitioners serving millions of client consumers,
clinical social workers constitute the largest group of mental-
health/healthcare providers in the nation.
The knowledge base of clinical social work includes theories
of biological, psychological, and social development; diversity
and cultural competency; interpersonal relationships; family and
group dynamics; mental disorders; addictions; impacts of illness,
trauma, or injury; and the effects of the physical, social, and
cultural environment. This knowledge is inculcated in social work
graduate school and is fused with direct-practice skills that are
developed by the practitioner during a period of at least two
years of post-graduate experience under clinical supervision.
This period should suffice to prepare the clinical social worker for
autonomous practice and state-licensure as a clinical social work
professional. In the years that follow, clinical social workers may
pursue an advanced-generalist practice or may decide to
specialize in one or more areas.
https://abecsw.org/clinical-social-work/clinical-social-work-described/
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whether the attorney-client privilege covers the notes that Mr. Regola took
during depositions herein and at his criminal trial. The
psychiatrist/psychologist-patient privilege is codified; the interpretation of a
statute is a question of law, resulting in a standard of review that is de novo
and a scope of review that is plenary. McLaughlin v. Garden Spot
Village, 144 A.3d 950 (Pa.Super. 2016). The identical standard of review
applies to our review of the trial court's conclusion that the attorney-client
privilege, which likewise has been codified, is inapplicable to notes that Mr.
Regola took at his attorneys' instructions during the course of litigation.
Yocabet, supra at 1019 (citing In re Thirty-Third Statewide
Investigating Grand ]ury, 86 A.3d 204, 215 (Pa. 2014) (appellate review
is plenary where appeal involves application of attorney-client privilege).
Simply put, we owe no deference at all to the trial court's rulings
herein. We additionally note the following. Judge Marsili provided
absolutely no analysis of why he concluded that the materials were not
subject to the asserted privileges, which were continually raised and briefed
by the Regolas. Indeed, he cites not a single case. His opinion merely
contains a recitation of procedural matters. During his review of the
procedure, he also incorrectly states that: 1) Judge Caruso's order required
production of the materials in question; and 2) the Regolas did not provide
detailed privilege logs.
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As our assiduous review of the record reveals, Judge Caruso's order
specifically deferred ruling on the privileges asserted by the Regolas and did
not, to any extent, require the production of the materials at issue in this
appeal, which are communications that the Regolas gave to their mental
health counselor and attorneys, respectively, about the events surrounding
Bobby's suicide. In addition, the Regolas unquestionably compiled detailed
privilege logs and complied, to the letter, with the June 11, 2014 order
issued by Judge Marsili, even though that order inexplicably, and without
any analysis, ordered Mr. Regola to waive his attorney-client privilege in the
notes being held by Mr. Porter.
We now examine the law generally applicable to privileges. Even
though Pennsylvania courts disfavor privileges since they obstruct the ability
to ascertain the truth, we will “faithfully adhere to constitutional, statutory,
II
or common law privileges. McLaughlin, supra at 953. If “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." Id. (citation omitted). This court does not have the power to
“order disclosure of materials that the legislature has explicitly directed be
kept confidential." Id. (citation omitted).
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PSYCHIATRIST/PSYCHOLOGIST-PATIENT
We first analyze whether the Regolas must produce for in camera
review the records of Mrs. Regola's counseling sessions. In this connection,
we stress that Mr. Farrell is seeking statements made by Mrs. Regola about
the events at issue in this lawsuit, and it is those communications by Mrs.
Regola that Judge Marsili intends to give to Mr. Farrell. With respect to the
counseling records, the Regolas invoked the psychiatrist/psychologist-patient
privilege:
No psychiatrist or person who has been licensed under the
act of March 23, 1972 (P.L. 136, No. 52), to practice psychology
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. 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.
42 Pa.c.s. § 5944.2
2 It is interesting to note that, prior to the enactment of this statutory
privilege, in the case of In re "B," 394 A.2d 419 (Pa. 1978), our Supreme
Court recognized a constitutionally-based privilege in a patient's
communications to a psychiatrist. Therein, the administrator of a psychiatric
hospital was held in criminal contempt during the dispositional phase of a
juvenile delinquency proceeding because the administrator refused to
release the records of counseling sessions that the juvenile's mother had
undergone at the facility. Those communications were sought in order to
facilitate the determination of the appropriate placement for the juvenile.
On appeal, our Supreme Court was divided, but five Justices agreed
that the contempt finding should be reversed. While Justice Roberts
(Footnote Continued Next Page)
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(Footnote Continued)
concluded that the codified doctor-patient privilege applied, pertinent in the
present case is the analysis employed by Justices Mandarino, Nix, and
Larson, with Justice O'Brien's concurrence. Justice Roberts concluded that
the disclosure of the records of mother's treatment at the psychiatric
hospital was “barred by the patient's constitutionally protected right of
privacy." Id. at 422. After outlining the basis for the constitutional right to
privacy in both the United States and Pennsylvania Constitutions, Justice
Roberts observed that the “right of privacy derived from these constitutional
underpinnings protects the privacy of intimate relationships like those
existing in the family, marriage, motherhood, procreation, and child rearing"
and extends to “the home, . . . the doctor's office, the hospital, the hotel
room, or as is otherwise required to safeguard the right to privacy involved
in such intimate relationships." Id. 424. Justice Roberts continued that “in
Pennsylvania, an individual's interest in preventing the disclosure of
information revealed in the context of a psychotherapist-patient relationship
has deeper roots than the Pennsylvania doctor-patient privilege statute, and
that the patient's right to prevent disclosure of such information is
constitutionally based." Id. at 425 (emphasis added). Our High Court
observed that, “The nature of the psychotherapeutic process is such that
disclosure to the therapist of the patient's most intimate emotions, fears,
and fantasies is required." Id. at 425. It continued:
a person enters “psychotherapy because they have deep-seated
conflicts and impairment of functioning which limit their ability to
work effectively and to enjoy fully satisfying relationships with
other people. To alleviate these blocks and conflicts, the
therapist asks the patient to abandon ‘rational thought' and to
express thoughts and fears that may never have been revealed
to anyone else. Indeed, these innermost thoughts are often so
painful, embarrassing or shameful that the patient may never
before have allowed himself to acknowledge them.
The patient in psychotherapy knows that such revelations will be
expected if the process is to be beneficial. In laying bare one's
entire self, however, the patient rightfully expects that such
revelations will remain a matter of confidentiality exclusively
between patient and therapist.
Id. at 425-26 (citations omitted). The Court reversed the contempt finding
issued by the juvenile court.
(Footnote Continued Next Page)
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This 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[.]"
Commonwealth v. Simmons, 719 A.2d 336, 341 (Pa. Super. 1998).
Mr. Farrell is not seeking to discover the opinions, observations,
diagnosis, or treatment plan of Mrs. Regola's therapist. Rather, he is
attempting to uncover statements made by Mrs. Regola during the course of
her therapy, which falls squarely within the parameters of the privilege. We
are aware that the privilege is not absolute and that it can be waived when a
person knew or should have known that his mental health would be called
into question by filing a legal action. See Commonwealth v. T.].W., 114
A.3d 1098 (Pa.Super. 2015). However, Mrs. Regola did not initiate this
lawsuit, and the allegations in the complaint do not implicate her mental
health. Rather, they pertain to her actions with respect to the gun in her
home.
This privilege has withstood a challenge on constitutional grounds. For
example in Commonwealth v. Kyle, 533 A.2d 120 (Pa.Super. 1987), Kyle
physically and sexually assaulted the owner of a store and was found guilty
of numerous offenses, including rape and involuntary deviate sexual
(Footnote Continued)
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intercourse. After the attack, the victim received counseling from a
psychologist. Kyle sought her counseling file to ascertain if it contained
evidence of a viable defense or, alternatively, asked that the trial court
inspect the file. The trial court concluded that all the records of the
counseling sessions were privileged under § 5944, and refused to find that
the privilege yielded to Kyle's confrontation clause right to review the record
and ascertain whether it contained information potentially of value to him.
This Court upheld the trial court, declining to grant the defendant the right
to in camera review of the counseling record so that the court could
determine whether there was any materially exculpatory evidence. We
concluded that “the Pennsylvania law in this case grants an absolute
privilege for communications between a licensed psychologist and a client."
Id at 125. Based upon the fact that § 5944 had no exceptions to its non-
disclosure mandates, it was held to embody a strong public policy of an
absolute privilege.
This Court outlined the reason that the psychiatrist/psychologist-client
privilege was sacrosanct:
Among physicians, the psychiatrist has a special need to
maintain confidentiality. His capacity to help his patients is
completely dependent upon their willingness and ability to talk
freely. This makes it difficult if not impossible for him to function
without being able to assure his patients of confidentiality and,
indeed, privileged communication. Where there may be
exceptions to this general rule, there is wide agreement that
confidentiality is a sine qua non for successful psychiatric
treatment. The relationship may well be likened to that of the
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priest-penitent or the lawyer-client. Psychiatrists not only
explore the very depths of their patients' conscious, but their
unconscious feelings and attitudes as well. Therapeutic
effectiveness necessitates going beyond a patient's awareness
and, in order to do this, it must be possible to communicate
freely. A threat to secrecy blocks successful treatment.
Id. at 126 (quoting Report No. 45, Group for the Advancement of Psychiatry
92 (1960), quoted in Advisory Committee's Notes to Proposed Rules, 56
F.R.D. at 242). Indeed, it is generally agreed “in the legal and medical
worlds that confidentiality of communications between patients and
therapists is the sine qua non of successful psychiatric treatment." Id.
(quoting Commonwealth ex rel. Platt v. Platt, 404 A.2d 410, 425
(Pa.Super. 1979) (Spaeth, J., concurring and dissenting). Stated differently,
patient confidence is essential for effective treatment. Because the
information revealed by the patient is extremely personal, the threat
of disclosure to outsiders may cause the patient to hesitate or even
refrain from seeking treatment. The privilege thus serves the public
interest in promoting a society in which the general well-being of the
citizenry is protected.
Kyle, supra at 126 (footnote omitted). Thus, § 5944 “effectuated a means
whereby the goal of effective treatment would not be impaired." Id.
Herein, the trial court ordered the Regolas to reveal to it all of the
records of Mrs. Regola's counseling sessions at Kreinbrook Psychological
Services for the sole purpose of discerning any communications made by
Mrs. Regola to her health care providers about this incident. The crux of the
matter in this appeal is whether the parameters of the statutory privilege
applies to the counseling sessions that Mrs. Regola had with Mark R. Jones,
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a licensed clinical social worker who provided a portion of Mrs. Regola's
mental health care. The Regolas first ask us to apply the reasoning of
]affee v. Redmond, 518 U.S. 1 (1996), wherein the United States Supreme
Court extended the federal psychiatrist-patient privilege to clinical social
workers. Appellant's brief at 16-18.3 We decline this invitation to extend
the statute, as it is unnecessary.
3 The United States Supreme Court proffered compelling reasons for
extending the privilege to clinical social workers:
All agree that a psychotherapist privilege covers confidential
communications made to licensed psychiatrists and
psychologists. We have no hesitation in concluding in this case
that the federal privilege should also extend to confidential
communications made to licensed social workers in the course of
psychotherapy. The reasons for recognizing a privilege for
treatment by psychiatrists and psychologists apply with equal
force to treatment by a clinical social worker such as Karen
Beyer. Today, social workers provide a significant amount of
mental health treatment. See, e.g., U.S. Dept. of Health and
Human Services, Center for Mental Health Services, Mental
Health, United States, 1994, pp. 85-87, 107-114; Brief for
National Association of Social Workers et al. as Amici Curiae 5-7
(citing authorities). Their clients often include the poor and
those of modest means who could not afford the assistance of a
psychiatrist or psychologist, id., at 6-7 (citing authorities), but
whose counseling sessions serve the same public goals. Perhaps
in recognition of these circumstances, the vast majority of States
explicitly extend a testimonial privilege to licensed social workers
We therefore agree . . . that drawing a distinction between the
counseling provided by costly psychotherapists and the
counseling provided by more readily accessible social workers
serves no discernible public purpose. . . .
]affee v. Redmond, 518 U.S. 1, 15-17 (1996) (footnotes omitted).
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Instead, we agree with the Regolas' alternative argument on appeal,
which is that existing Pennsylvania precedent protects any communications
that Mrs. Regola made to any member of the treatment team at Kreinbrook
Psychological Services. Appellants' brief at 18. In this respect, the Regolas
rely upon Simmons, supra, where a company known as Mentor Clinical
Care, Inc. (“Mentor") appealed an order compelling it to produce records it
possessed about T.W., a child who was allegedly abused by Simmons.
Mentor asserted the documents sought by the court were privileged under §
5944. Mentor operated as follows. At the request of a county department of
human services, it would provide, among other services, mental health care
to children without proper parental care and supervision. The mental health
services were delivered by a treatment team led by Mentor's director, a
licensed psychiatrist who worked for Mentor three days a week. The key
team member was a mentor adult, with whom the child lived and who kept a
log about a child's positive and negative behavior that impacted on the goals
of the treatment plan developed by the psychiatrist. Other team members
delivered the mental health services and consisted of clinical coordinators
who had a master's degree in social work, education, counseling or human
services and who met with the mentor adult weekly.
The victim in Simmons went to live with the defendant and his wife,
who was the victim's mentor adult. After he was charged with sexually
abusing T.W., Simmons issued a subpoena to Mentor, demanding that it turn
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over all of its records concerning T.W. Mentor furnished certain records that
it did not consider privileged, but moved to quash the subpoena to the
extent that its records included information about mental health treatment
provided to T.W. Mentor's request was denied since T.W.'s mental health
care was being provided by social workers and a mentor adult, who had no
mental health training. We overruled the trial court and held that “any oral
communication by T.W. in private to any member of the treatment team
and used by the team for the purpose of psychotherapeutic evaluation is
privileged. Additionally, any reference to such a communication in Mentor's
files is privileged as well." Id. at (emphasis in original).
In Simmons, we noted that, as expressly stated in § 5944, the scope
of the psychiatrist/psychologist-patient privilege is to be interpreted in the
same manner as communications between an attorney and client. We
observed that:
In determining whether a communication by a client to someone
other than his attorney is covered by the attorney-client
privilege, courts have held that as long as the recipient of the
information is an agent of the attorney and the statement is
made in confidence for the purpose of facilitating legal advice, it
is privileged. Commonwealth v. Noll, 443 Pa.Super. 602, 662
A.2d 1123, 1126 (1995), appeal denied, 543 Pa. 726, 673 A.2d
333 (1996) (confidential statement to accident reconstructionist
hired by attorney to determine whether the client should sue is
privileged); Commonwealth v. Mrozek, 441 Pa.Super. 425,
428-31, 657 A.2d 997, 999-1000 (1995) (inculpatory statement
to attorney's secretary made while defendant was seeking to
retain attorney for legal representation and advice is privileged);
Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d
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740, 744-745 (1981) (inculpatory statement made to
investigator for public defender's office is privileged).
Id. at 343.
This Court observed that, for purposes of the attorney-client privilege,
“the job description of the recipient of a confidential communication or their
lack of legal training is irrelevant so long as the recipient is an agent of an
attorney and the statement is made in confidence for the purpose of
obtaining or facilitating legal advice.” Id. We continued that this “reasoning
should apply with equal force to members of the Mentor treatment team in
conversations with T.W. in the course of facilitating the treatment plan." Id.
The Simmons Court held that “the fact that the other members of the
treatment team were not themselves psychologists does not defeat the
privilege should it otherwise apply” and that “T.W. is entitled to protection in
her confidential communications to members of the team." Id. at 343-44
(footnote omitted).
In the present case, Mrs. Regola sought mental health treatment at
Kreinbrook Psychological Services, which is operated by a licensed
psychologist. Her therapy was conducted by a member of his organization.
Regardless of Mr. Jones' title, the record establishes that the mental health
counseling that he provided for Mrs. Regola was performed in his capacity as
a member of team that included a licensed psychologist, Dr. Kreinbrook, at
Dr. Kreinbrook's facility, Kreinbrook Psychological Services. Mrs. Regola had
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every right to believe that her communications, which were clearly obtained
for purposes of seeking mental health treatment, would be confidential.
Hence, the March 11, 2015 order is reversed to the extent that it required
that the records of Mrs. Regola's treatment at Kreinbrook Psychological
Services be turned over to the trial court so that the court could, in turn,
provide her communications about this incident to Mr. Farrell.
ATTORNEY-CLIENT PRIVILEGE
We now address Mr. Regola's assertion of the attorney-client privilege
in the notes that he took at the direction of his attorney in the present
matter and his attorney in his criminal case. Although the attorney-client
privilege is derived from the common law, Yocabet, supra, it now is
codified for purpose of both civil and criminal matters. “In a civil matter,
counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled
to disclose the same, unless in either case this privilege is waived upon the
trial by the client." 42 Pa.C.S. § 5928. Similarly: “In a criminal proceeding,
counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled
to disclose the same, unless in either case this privilege is waived upon the
trial by the client." 42 Pa.C.S. § 5916.
In Yocabet, we reiterated, “The attorney-client privilege is intended to
foster candid communications between counsel and client, so that counsel
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may provide legal advice based upon the most complete information from
the client." Yocabet, supra at 1027 (citation omitted). Accordingly, “the
privilege is founded upon a policy extrinsic to the protection of the fact-
finding process.” Id. (citation omitted). The privilege operates in both
directions, protecting communications from the lawyer to a client as well as
ones from a client to his attorney. Gilliard v. AIG Insurance Co., 15 A.3d
44 (Pa. 2011). The privilege is properly invoked if
1) The asserted holder of the privilege is or sought to become a
client.
2) The person to whom the communication was made is a
member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was
informed by his client, without the presence of strangers, for the
purpose of securing either an opinion of law, legal services or
assistance in a legal matter, and not for the purpose of
committing a crime or tort.
4) The privilege has been claimed and is not waived by the
client.
Yocabet, supra at 1027 (citation omitted).
In the present case, Mr. Regola was Mr. Porter's client when he made
the notes at the criminal trial where he was the named defendant and he
was Mr. Leonard's client when he took the notes during the civil depositions
in this matter wherein he is a named defendant. Both Mr. Porter and Mr.
Leonard are licensed members of the bar. The notes were taken at the
direction of the attorneys for purposes of securing Mr. Regola's assistance in
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defending him in the lawsuits in question and given only to those lawyers.
The privilege was never waived and, instead, has been continually asserted
herein.
Mr. Farrell's position is that the notes were not privileged because Mr.
Regola said he did not know why he was taking them and would probably do
nothing with them. Mr. Regola's statements do not mean that the privilege
does not apply. They merely indicate that he did not know why he was
asked by his lawyers to take the notes and he would not be doing anything
with them_his lawyers would. The privilege logs are clear and unequivocal.
The attorneys in question stated that Mr. Regola took the notes at their
direction for purposes of aiding Mr. Regola's defense in lawsuits filed against
him and continued that they took possession of the notes after they were
taken. Notes taken by a client in a lawsuit at the lawyer's behest and given
to the attorney so that the attorney can help defend the client in the suit are
absolutely privileged.
In conclusion, we hold that the Regolas are not required to produce to
anyone, either the trial court or Mr. Farrell, any of Mrs. Regola's counseling
records from Kreinbrook Psychological Services. They also are not required
to produce to the trial court or to Mr. Farrell any of the notes taken by Mr.
Regola either in this case or in his criminal case.
The March 11, 2015 order is reversed in its entirety. Case remanded.
Jurisdiction relinquished.
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Judge Mundy did not participate in the consideration or decision of this
case.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 11/8/2016
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