McLaughlin v. v. Garden Spot Village

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2016 PA Super 161VICKI L. MCLAUGHLIN AND CAROL L. IN THE SUPERIOR COURT OF
MACCONNELL, CO-ADMINISTRATRICES PENNSYLVANIA
FOR THE ESTATE OF DOROTHY L.
BRACE, DECEASED
v.
GARDEN SPOT VILLAGE AND GARDEN
SPOT VILLAGE OF AKRON D/B/A MAPLE
FARM NURSING CENTER AND GLENN
HERSHEY
APPEAL OF: GARDEN SPOT VILLAGE
AND GARDEN SPOT VILLAGE OF AKRON No. 647 MDA 2015
D/B/A MAPLE FARM NURSING CENTER
Appeal from the Order Entered April 13, 2015
In the Court of Common Pleas of Lancaster County
Civil Division at No: CI-14-01922
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
OPINION BY STABILE, J.: FILED JULY 22, 2016
Appellant, Garden Spot Village and Garden Spot Village of Akron d/b/a
Maple Farm Nursing Center (“Appellant”) appeals from the April 13, 2015
order denying Appellant’s motion for a protective order. We affirm.
Plaintiffs Vicki L. McLaughlin and Carol L. MacConnell, as co-
administratrices of the estate of Dorothy L. Brace (the “Decedent”), sued
Appellant and Glenn Hershey (“Hershey”) for negligence, breach of fiduciary
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*
Former Justice specially assigned to the Superior Court.
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duty, and premises liability after Hershey sexually assaulted the Decedent
while Hershey and the Decedent were residents of Appellant’s nursing home.
Hershey was a registered sex offender before he assaulted the Decedent.
Hershey subsequently pled guilty to involuntary deviate sexual intercourse 1
and received a sentence of eight to twenty years of incarceration. The
Decedent passed away ten months after the assault from unrelated causes.
Plaintiffs alleged Appellant was aware of the threat Hershey posed to the
Decedent.
Presently, we must resolve a discovery dispute. The Older Adults
Protective Services Act (the “Act”), 35 P.S. § 10225.101, et. seq.,2 provides
for the creation of local agencies to investigate reports of abuse of persons
60 years and older and, if necessary, provide protective services to the
victim and report the incident to law enforcement. The Act also contains
provisions protecting the confidentiality of agency records and the identity of
reporters of abuse. The parties already have received and reviewed various
redacted records from Lancaster County Office of Aging (“Office”), which
investigated Hershey’s assault of the Decedent. Also, the parties deposed
four employees of the Office under stipulation that the deponents not be
asked to identify reporters of abuse or other persons who cooperated in the
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1
18 Pa.C.S.A. § 3123(a)(5).
2
1987 Pa. Laws 381, as amended at 1996 Pa. Laws 1125 and 1997 Pa.
Laws 160.
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investigation. Plaintiffs now seek to depose one of Appellant’s employees,
Carrie Kneisley (“Kneisley”), and ask, among other things, what she told the
Office. Appellant filed a motion for a protective order, arguing Kneisley’s
testimony is privileged under the Act. The trial court denied Appellant’s
motion and permitted the deposition to go forward under seal. Appellant
filed this timely interlocutory appeal from that order pursuant to Pa.R.A.P.
313.3
Appellant argues the Act created a privilege that precludes plaintiffs
from taking Kneisley’s deposition. This is a matter of first impression.
Interpretation of the Act presents a question of law. Phoenixville Hosp. v.
Workers’ Comp. Appeal Bd., 81 A.3d 830, 838 (Pa. 2013). Therefore, our
standard of review is de novo and our scope of review is plenary. In re
Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 215 (Pa.
2014). We observe that our law disfavors evidentiary privileges because
“they operate in derogation of the search for truth.” Id. (quoting
Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa. 1997)). Nonetheless,
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3
“A collateral order is an order separable from and collateral to the main
cause of action where the right involved is too important to be denied review
and the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).
This Court commonly exercises jurisdiction over a collateral appeal involving
an assertion of an evidentiary privilege. Berkeyheiser v. A-Plus
Investigations, Inc., 936 A.2d 1117, 1123-24 (Pa. Super. 2007). The
parties do not dispute this point.
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our courts will faithfully adhere to constitutional, statutory, or common law
privileges.
[W]here the legislature has considered the interests at
stake and has granted protection to certain relationships or
categories of information, the courts may not abrogate that
protection on the basis of their own perception of public policy
unless a clear basis for doing so exists in a statute, the common
law, or constitutional principles. Commonwealth v. Moore, []
[584 A.2d 936, 940 (Pa. 1991)] (‘[T]he general powers of the
courts do not include the power to order disclosure of materials
that the legislature has explicitly directed be kept confidential.’).
V.B.T. v. Family Servs. of W. Pennsylvania, 705 A.2d 1325, 1335 (Pa.
Super. 1998), affirmed, 728 A.2d 953 (Pa. 1999).
As this case involves statutory construction, we observe the following:
If the language of the statute clearly and unambiguously
sets forth the legislative intent, it is the duty of the court to
apply that intent to the case at hand and not look beyond the
statutory language to ascertain its meaning. See 1 Pa.C.S.
§ 1921(b) (“When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”). ‘Relatedly, it is well established
that resort to the rules of statutory construction is to be made
only when there is an ambiguity in the provision.’ Oliver v. City
of Pittsburgh, 11 A.3d 960, 965 (Pa. 2011).
Mohamed v. Commonwealth, Dep't of Transp., Bureau of Motor
Vehicles, 40 A.3d 1186, 1193 (Pa. 2012).
Several provisions in the Act protect persons who report abuse and
protect the confidentiality of certain information. Section 302 provides, “Any
person having reasonable cause to believe that an older adult is in need of
protective services may report such information to the agency which is the
local provider of protective services.” 35 P.S. § 10225.302(a). Section
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302(c) creates a civil remedy for any reporter of abuse who suffers
retaliation for making the report. 35 P.S. § 10225.302(c). Section 302(c.1)
provides a civil remedy for intimidation of anyone with sufficient knowledge
to make a report. 35 P.S. § 10225.302(c.1). Most significantly, Section
302(d) provides, “Any person participating in the making of a report or who
provides testimony in any administrative or judicial proceeding arising out of
a report shall be immune from any civil or criminal liability on account of the
report or testimony unless the person acted in bad faith or with malicious
purpose.” 35 P.S. § 10225.302(d). Thus, § 302(d) contemplates that
judicial proceedings may arise out of reports of abuse, as has happened
instantly. Section 302(d) protects persons who become witnesses in a
judicial proceeding from criminal or civil liability based on their testimony,
but unambiguously does not preclude their testimony.
Next, we turn to § 306 of the Act, titled “Confidentiality of records.”
35 P.S. § 306:
(a) General rule.--Information contained in reports, records of
investigation, client assessment and service plans shall be
considered confidential and shall be maintained under
regulations promulgated by the department to safeguard
confidentiality. Except as provided below, this information shall
not be disclosed to anyone outside the agency other than to a
court of competent jurisdiction or pursuant to a court order.
(b) Limited access to the agency’s protective services
records.--
(1) In the event that an investigation by the agency results
in a report of criminal conduct, law enforcement officials shall
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have access to all relevant records maintained by the agency or
the department.
(2) In arranging specific services to carry out service
plans, the agency may disclose to appropriate service providers
such information as may be necessary to initiate the delivery of
services.
(3) A subject of a report made under section 302 may
receive, upon written request, all information contained in the
report except that prohibited from being disclosed by paragraph
(4).
(4) The release of information that would identify the
person who made a report of suspected abuse, neglect,
exploitation or abandonment or person who cooperated in a
subsequent investigation, is hereby prohibited unless the
secretary can determine that such a release will not be
detrimental to the safety of such person.
(5) When the department is involved in the hearing of an
appeal by a subject of a report made under section 302, the
appropriate department staff shall have access to all information
in the report record relevant to the appeal.
(6) For the purposes of monitoring agency performance,
appropriate staff of the department may access agency
protective services records.
35 P.S. § 10225.306 (footnote omitted).
Appellant relies on § 306 to demonstrate that protecting the
confidentiality of agency records and the identity of reporters of abuse is of
“paramount concern” under the Act. Appellant’s Brief at 14. Appellant is
correct in asserting that § 306 circumscribes the availability of agency
records. That section is of little or no relevance to this appeal, however, as
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agency records are not at issue. Kneisley is not an agency4 employee, nor is
there any reason to believe she has the ability to disclose any agency
records.
Appellant also relies on Chapter seven of the Act (“Reporting
Suspected Abuse by Employees”). Chapter seven addresses “employee”
reports of abuse of “recipients.” 35 P.S. § 10225.701(a)(1). An “employee”
is a person employed by a “facility.” 35 P.S. § 10225.103 (“Employee”). A
“facility” can be a nursing home or other care center. 35 P.S. § 10225.103
(“Facility”). A “recipient” is “[a]n individual who receives care, services or
treatment in or from a facility.” 35 P.S. § 10225.103 (“Recipient”). We will
assume for purposes of analysis that Appellant’s nursing home is a “facility,”
Kneisley is an “employee,” and the Decedent was a “recipient,” as those
terms are defined in the Act.5 Section 701 requires an employee to report
suspected abuse of a recipient to the agency and potentially to law
enforcement. 35 P.S. § 10225.701(a), (b). Section 705 governs the
confidentiality of reports made under Chapter 7:
(a) General rule.--Except as provided in subsection (b), a
report under this chapter shall be confidential.
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4
An “agency” is a local provider of protective services, per the Act’s
definitions section. 35 P.S. § 10225.103 (“Agency”).
5
The trial court issued no findings on these issues and the parties do not
address them. Our assumption for purposes of analysis creates no binding
precedent on the matter.
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(b) Exceptions.--A report under this chapter shall be made
available to all of the following:
(1) An employee of the department or of an agency in the
course of official duties in connection with responsibilities under
this chapter.
(2) An employee of the Department of Health or the
Department of Public Welfare in the course of official duties.
(3) An employee of an agency of another state which
performs protective services similar to those under this chapter.
(4) A practitioner of the healing arts who is examining or
treating a recipient and who suspects that the recipient is in
need of protection under this chapter.
(5) The director, or an individual specifically designated in
writing by the director, of any hospital or other medical
institution where a victim is being treated if the director or
designee suspects that the recipient is in need of protection
under this chapter.
(6) A guardian of the recipient.
(7) A court of competent jurisdiction pursuant to a court
order.
(8) The Attorney General.
(9) Law enforcement officials of any jurisdiction as long as
the information is relevant in the course of investigating cases of
abuse.
(10) A mandated reporter under Chapter 3 who made a
report of suspected abuse. Information released under this
paragraph shall be limited to the following:
(i) The final status of the report following the
investigation.
(ii) Services provided or to be provided by the
agency.
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(c) Excision of certain names.--The name of the person
suspected of committing the abuse shall be excised from a
report made available under subsection (b)(4), (5) and (10).
(d) Release of information to alleged perpetrator and
victim.--Upon written request, an alleged perpetrator and victim
may receive a copy of all information except that prohibited from
being disclosed by subsection (e).
(e) Protecting identity of person making report.--Except for
reports to law enforcement officials, the release of data that
would identify the individual who made a report under this
chapter or an individual who cooperated in a subsequent
investigation is prohibited. Law enforcement officials shall treat
all reporting sources as confidential information.
35 P.S. § 10225.705.
Assuming § 705’s applicability to Kneisley as an employee, Appellant
as a facility, and the Decedent as recipient, the Act required Kneisley to
report Hershey’s abuse of the Decedent (if she had reasonable cause to
suspect that abuse occurred, per § 701(a) and (b)) to the Office and to law
enforcement. If Kneisley made such a report, § 705 protects the
confidentiality of that report. Likewise, § 705(e) precludes the “release of
data” that would identify the reporter. 35 P.S. § 10225.705(e). We
conclude § 705 cannot support Appellant’s argument because Plaintiffs are
not seeking an agency report.
Notwithstanding the foregoing, Appellant argues Kinsley’s deposition
will constitute an impermissible “release of data” under § 705(e). Appellant
argues that § 705(e) does not identify which entities or persons are
prohibited from releasing data, and therefore that prohibition applies to
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everybody. Appellant’s Brief at 18. We find nothing in § 705(e) that
prevents Kneisley from testifying in a civil action arising from the alleged
abuse. As noted above, § 302(d) expressly contemplates that reporters of
abuse and other persons who cooperate in an agency investigation will be
called upon to testify in judicial proceedings. Nothing in § 705(e) precludes
third parties such as Plaintiffs from gathering information by deposing an
employee. In other words, § 705 does not render employees who cooperate
in agency investigations incompetent to testify in subsequent judicial
proceedings.
Finally, Appellant argues that Kneisley’s deposition will violate the
policy of the act, as set forth in § 102:
It is declared the policy of the Commonwealth of
Pennsylvania that older adults who lack the capacity to protect
themselves and are at imminent risk of abuse, neglect,
exploitation or abandonment shall have access to and be
provided with services necessary to protect their health, safety
and welfare. It is not the purpose of this act to place restrictions
upon the personal liberty of incapacitated older adults, but this
act should be liberally construed to assure the availability of
protective services to all older adults in need of them. Such
services shall safeguard the rights of incapacitated older adults
while protecting them from abuse, neglect, exploitation and
abandonment. It is the intent of the General Assembly to provide
for the detection and reduction, correction or elimination of
abuse, neglect, exploitation and abandonment, and to establish
a program of protective services for older adults in need of
them.
35 P.S. § 10225.102. Appellant argues the trial court’s order will create
among those who witness abuse a reluctance to come forward. This in turn,
will deny protective services to those who need them and thereby violate
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§ 102’s mandate to construe the Act liberally to assure availability of
protective services.
Appellant cites the Child Protective Services Law (“CPSL”), 23
Pa.C.S.A. § 6301, et. seq., as construed in V.B.T., as an analogue. One
purpose of the CPSL is to “[e]ncourage more complete reporting of
suspected child abuse.” 23 Pa.C.S.A. § 6302. In V.B.T., the plaintiff
parents filed suit for the alleged sexual and physical abuse of their child by a
foster child living in their neighborhood. V.B.T., 705 A.2d at 1327. The
plaintiffs alleged, among other things, that the defendant agency was aware
of the foster child’s propensity to abuse other children and therefore was
negligent in placing the foster child in a neighborhood with other young
children. Id. The plaintiffs noticed a deposition for the purpose of exploring
the agency’s knowledge of the foster child’s personal and family history, and
the agency moved for a protective order. Id. at 1328. The trial court
denied the agency’s motion, reasoning that it would cripple the plaintiff’s
ability to prosecute their case against the agency. Id. at 1328-29.
Significantly, neither party questioned “the trial court’s finding that the
matters of which the plaintiffs seek discovery fall within the ambit of
privileges created by [the CPSL].” Id. at 1329. In other words, the trial
court and the parties recognized the applicability of a statutory privilege.
The agency contested the trial court’s conclusion that the plaintiffs’ interest
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in prosecuting their negligence action outweighed the agency’s interest in
relying on its statutory privilege. Id.This Court described the purposes of the CPSL’s confidentiality
provisions:
[T]o encourage reporting of abuse by ensuring that
persons with knowledge of abuse are not deterred from
reporting it by the prospect of the abuser learning their identity
and seeking retribution; to facilitate the investigation of abuse
by assuring potential witnesses that the information they provide
to investigators will not be made public; to facilitate the
rehabilitation and treatment of abused children and their families
by encouraging open, frank communications with agency
personnel and treatment providers; to encourage the effective
operation of the child protective service by enabling it to keep
complete and comprehensive files on all aspects of a family’s
circumstances without fear that information placed in such files
will be subject to scrutiny by persons not involved in the process
of rehabilitating the family; and to prevent the innocent victims
of abuse from also becoming victims of public stigma by
guarding information about the intimate details of their lives
from the prying eyes of outsiders.
Id. at 1335-36. We further concluded that the plaintiffs demonstrated no
common law, statutory, or constitutional interest that outweighed the
application of a clearly applicable statutory privilege. Id.Two significant distinctions between V.B.T. and the instant case render
the V.B.T. Court’s analysis inapplicable here. First, the agency was a
defendant. Second, the plaintiffs admittedly sought information protected
by the CPSL’s confidentiality provisions. Instantly, the Lancaster County
Office of Aging is not a party, and we find nothing in the Act prohibiting a
nursing home employee from testifying in a civil action. Appellant would
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have us conclude that any person who reports abuse or cooperates in an
agency’s investigation of reported abuse of an older adult is disqualified from
testifying in a subsequent judicial proceeding. Nothing in the Act supports
Appellant’s argument, and § 302(d) directly contradicts it. Appellant is not
entitled to relief.
Based on all of the foregoing, we discern no error in the trial court’s
order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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