J-S07011-22
2022 PA Super 183
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARC W. NUZZO : : Appellant : No. 726 WDA 2021
Appeal from the Order Dated May 20, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000175-2019
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
CONCURRING/DISSENTING OPINION BY SULLIVAN, J.:
FILED: OCTOBER 18, 2022
The majority sets forth a persuasive rationale to hold that this appeal is
properly before this Court and that the trial court erred in holding that the
petition for an incompetency examination filed by Marc W. Nuzzo (“Nuzzo”) is
a public document. I agree that the collateral doctrine applies under the
circumstances of this case. However, I respectfully dissent because the text
of the Mental Health Procedures Act (“MHPA”), 50 P.S. §§ 7101-7503, does
not support the conclusion that a petition for an incompetency examination
requested pursuant to § 7402, even if it contains mental health information,
is a confidential document such that sealing is required.
A review of the record reveals the following facts and procedural history
of this appeal. Nuzzo was involved in a two-car automobile accident in
September 2018, which resulted in the death of one of the occupants of the ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S07011-22
other vehicle, and injuries to passengers in the other vehicle. In March 2019,
the Commonwealth charged Nuzzo with aggravated assault by vehicle,
homicide by vehicle, involuntary manslaughter, and recklessly endangering
another person.
On March 19, 2021, Nuzzo’s counsel filed a motion for continuance of a
status conference based on Nuzzo’s recent hospitalization and inability to
participate in the proceedings. The March 19th continuance motion attached
information concerning Nuzzo’s hospitalization, which the trial court sealed.
See Order, 3/29/21. One day before the rescheduled status conference,
Nuzzo’s counsel filed a second motion for continuance along with additional
medical documentation and a request that the filing be sealed. The trial court,
over the Commonwealth’s objection, granted the continuance, sealed Nuzzo’s
filing, and sealed its order granting Nuzzo’s requests. Additionally, the trial
court directed Nuzzo to file a petition seeking an incompetency examination
and for Nuzzo and the Commonwealth to submit memorandums on the trial
court’s authority to issue sealing orders and whether a petition for an order
directing an incompetency examination is a public record. See Nuzzo’s
Memorandum of Law Pursuant to April 21, 2021 Order, 5/7/21, at 1;
Commonwealth’s Memorandum Pursuant to the Order of April 21, 2021,
5/6/21, at 1. In his memorandum to the trial court, Nuzzo asserted that
§ 7111 protected the confidentiality of an incompetency petition.
-2- J-S07011-22
On May 6, 2021, Nuzzo filed a petition for an order directing an
incompetency evaluation pursuant to § 7402 of the MHPA.1 The trial court
granted the request for an incompetency examination but directed that the
petition for the examination would be deemed a public document. Nuzzo
sought an amendment of the order, which the trial court denied. This appeal
followed.
On appeal, Nuzzo raises two issues: (1) whether the trial court’s order
making his petition for an incompetency examination public was a collateral
order and (2) whether the trial court erred in denying his request to seal his
petition based on § 7111. See Nuzzo’s Brief at 4 (reordered). As noted above,
I agree with the majority that this appeal is properly before us pursuant to
the collateral order doctrine. See Majority Opinion at 7-13. Thus, the
remaining issue is whether Nuzzo’s petition requesting an incompetency
examination should be sealed as a confidential document under the MHPA.
This Court will only reverse a trial court’s decision to grant or deny
closure of the record upon a determination that the trial court abused its
discretion. See A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020).
However, questions concerning the proper interpretation and application of
the MHPA involve questions of law for which our standard of review is de novo
____________________________________________
1 The following day, May 7, 2021, Nuzzo filed an amended petition changing
some of his citations to the MHPA from § 7401, et seq. to § 7101, et seq.
-3- J-S07011-22
and our scope of review is plenary. See Commonwealth v. Segarra, 228
A.3d 943, 950 (Pa. Super. 2020), appeal denied, 237 A.3d 975 (Pa. 2020).
While it is well established that the MHPA must be strictly construed,
see Commonwealth v. Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991),2 it
is equally well established that the purpose of statutory interpretation is to
“ascertain and effectuate the intention of the General Assembly, giving effect
to all of its provisions.” Dubose v. Quinlan, 173 A.3d 634, 643 (Pa. 2017).
This analysis begins with “considering the plain meaning of the statute’s
language” and if the language is unambiguous it must be applied “without
employing familiar canons of construction and without considering legislative
intent.” Id. As the Statutory Construction Act instructs, “[w]hen the words of
a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
Nuzzo asserts that the issue in the matter before us begins and ends
with a review and analysis of § 7111, entitled “Confidentiality of Records,” to
determine whether the petition he filed should be sealed. To that end, he
2 The majority ably notes that there is no case law that addresses whether a
petition for an incompetency examination falls within the scope of § 7111. Moyer, like many cases addressing the MHPA and the confidentiality of treatment records, only considered the admission of a person’s treatment records as evidence at trial pursuant to § 7111 or the ability of a party to access such records during discovery. See Moyer, 595 A.2d at 1180; see also Segarra, 228 A.3d at 953. Moyer is clearly distinguishable from the case at bar because Moyer did not address the competency of the defendant to stand trial pursuant to § 7402; rather, it addressed an evidentiary issue at trial regarding the admission of the defendant’s actual treatment records as evidence at trial.
-4- J-S07011-22
suggests that § 7111 is not only the initial, but also the exclusive, provision
to be applied in making the determination.
However, Nuzzo’s legal argument puts the proverbial “cart before the
horse” by focusing on § 7111, the general provision governing the
confidentiality of treatment records, rather than first considering § 7402, the
specific provision governing requests for incompetency examinations. For
purposes of the analysis before us the procedural framework of § 7402 must
be reviewed and analyzed prior to applying any other section of the MHPA, for
to do anything else misconstrues the applicable statute and fails to put the
legal issues before us in the proper context.
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J-S07011-22
2022 PA Super 183
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARC W. NUZZO : : Appellant : No. 726 WDA 2021
Appeal from the Order Dated May 20, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000175-2019
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
CONCURRING/DISSENTING OPINION BY SULLIVAN, J.:
FILED: OCTOBER 18, 2022
The majority sets forth a persuasive rationale to hold that this appeal is
properly before this Court and that the trial court erred in holding that the
petition for an incompetency examination filed by Marc W. Nuzzo (“Nuzzo”) is
a public document. I agree that the collateral doctrine applies under the
circumstances of this case. However, I respectfully dissent because the text
of the Mental Health Procedures Act (“MHPA”), 50 P.S. §§ 7101-7503, does
not support the conclusion that a petition for an incompetency examination
requested pursuant to § 7402, even if it contains mental health information,
is a confidential document such that sealing is required.
A review of the record reveals the following facts and procedural history
of this appeal. Nuzzo was involved in a two-car automobile accident in
September 2018, which resulted in the death of one of the occupants of the ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S07011-22
other vehicle, and injuries to passengers in the other vehicle. In March 2019,
the Commonwealth charged Nuzzo with aggravated assault by vehicle,
homicide by vehicle, involuntary manslaughter, and recklessly endangering
another person.
On March 19, 2021, Nuzzo’s counsel filed a motion for continuance of a
status conference based on Nuzzo’s recent hospitalization and inability to
participate in the proceedings. The March 19th continuance motion attached
information concerning Nuzzo’s hospitalization, which the trial court sealed.
See Order, 3/29/21. One day before the rescheduled status conference,
Nuzzo’s counsel filed a second motion for continuance along with additional
medical documentation and a request that the filing be sealed. The trial court,
over the Commonwealth’s objection, granted the continuance, sealed Nuzzo’s
filing, and sealed its order granting Nuzzo’s requests. Additionally, the trial
court directed Nuzzo to file a petition seeking an incompetency examination
and for Nuzzo and the Commonwealth to submit memorandums on the trial
court’s authority to issue sealing orders and whether a petition for an order
directing an incompetency examination is a public record. See Nuzzo’s
Memorandum of Law Pursuant to April 21, 2021 Order, 5/7/21, at 1;
Commonwealth’s Memorandum Pursuant to the Order of April 21, 2021,
5/6/21, at 1. In his memorandum to the trial court, Nuzzo asserted that
§ 7111 protected the confidentiality of an incompetency petition.
-2- J-S07011-22
On May 6, 2021, Nuzzo filed a petition for an order directing an
incompetency evaluation pursuant to § 7402 of the MHPA.1 The trial court
granted the request for an incompetency examination but directed that the
petition for the examination would be deemed a public document. Nuzzo
sought an amendment of the order, which the trial court denied. This appeal
followed.
On appeal, Nuzzo raises two issues: (1) whether the trial court’s order
making his petition for an incompetency examination public was a collateral
order and (2) whether the trial court erred in denying his request to seal his
petition based on § 7111. See Nuzzo’s Brief at 4 (reordered). As noted above,
I agree with the majority that this appeal is properly before us pursuant to
the collateral order doctrine. See Majority Opinion at 7-13. Thus, the
remaining issue is whether Nuzzo’s petition requesting an incompetency
examination should be sealed as a confidential document under the MHPA.
This Court will only reverse a trial court’s decision to grant or deny
closure of the record upon a determination that the trial court abused its
discretion. See A.A. v. Glicken, 237 A.3d 1165, 1170 (Pa. Super. 2020).
However, questions concerning the proper interpretation and application of
the MHPA involve questions of law for which our standard of review is de novo
____________________________________________
1 The following day, May 7, 2021, Nuzzo filed an amended petition changing
some of his citations to the MHPA from § 7401, et seq. to § 7101, et seq.
-3- J-S07011-22
and our scope of review is plenary. See Commonwealth v. Segarra, 228
A.3d 943, 950 (Pa. Super. 2020), appeal denied, 237 A.3d 975 (Pa. 2020).
While it is well established that the MHPA must be strictly construed,
see Commonwealth v. Moyer, 595 A.2d 1177, 1179 (Pa. Super. 1991),2 it
is equally well established that the purpose of statutory interpretation is to
“ascertain and effectuate the intention of the General Assembly, giving effect
to all of its provisions.” Dubose v. Quinlan, 173 A.3d 634, 643 (Pa. 2017).
This analysis begins with “considering the plain meaning of the statute’s
language” and if the language is unambiguous it must be applied “without
employing familiar canons of construction and without considering legislative
intent.” Id. As the Statutory Construction Act instructs, “[w]hen the words of
a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).
Nuzzo asserts that the issue in the matter before us begins and ends
with a review and analysis of § 7111, entitled “Confidentiality of Records,” to
determine whether the petition he filed should be sealed. To that end, he
2 The majority ably notes that there is no case law that addresses whether a
petition for an incompetency examination falls within the scope of § 7111. Moyer, like many cases addressing the MHPA and the confidentiality of treatment records, only considered the admission of a person’s treatment records as evidence at trial pursuant to § 7111 or the ability of a party to access such records during discovery. See Moyer, 595 A.2d at 1180; see also Segarra, 228 A.3d at 953. Moyer is clearly distinguishable from the case at bar because Moyer did not address the competency of the defendant to stand trial pursuant to § 7402; rather, it addressed an evidentiary issue at trial regarding the admission of the defendant’s actual treatment records as evidence at trial.
-4- J-S07011-22
suggests that § 7111 is not only the initial, but also the exclusive, provision
to be applied in making the determination.
However, Nuzzo’s legal argument puts the proverbial “cart before the
horse” by focusing on § 7111, the general provision governing the
confidentiality of treatment records, rather than first considering § 7402, the
specific provision governing requests for incompetency examinations. For
purposes of the analysis before us the procedural framework of § 7402 must
be reviewed and analyzed prior to applying any other section of the MHPA, for
to do anything else misconstrues the applicable statute and fails to put the
legal issues before us in the proper context.
The parties here do not dispute that Nuzzo sought an incompetency
examination under § 7402 of the MHPA, entitled “Incompetence to proceed on
criminal charges and lack of criminal responsibility as defense.” Essentially,
this section permits “the Commonwealth, a person charged with a crime, his
counsel, or the warden or other official in charge of the institution or place in
which he is detained” to apply to the court for an incompetency hearing. See
50 P.S. § 7402(c). This “examination” is limited in scope, namely the
determination of whether a criminal defendant is competent to “understand
the nature or object of the proceedings against him or to participate and assist
in his defense.” Id. at § 7402(a). Conspicuously absent from § 7402 is any
mention of mental health treatment, treatment records, or even the mental
health status of the criminal defendant who is the subject of the application
-5- J-S07011-22
for the examination.3 Nowhere in § 7402 does the legislature suggest or imply
that an incompetency examination is “treatment,” and the language plainly
states that the procedure for an incompetency examination is preliminary in
nature. That is, when examination is ordered it is for the sole purpose of
determining competency, nothing more. See id. at § 7402(c).
Furthermore, there is no suggestion that the petition requesting an
incompetency examination or the court order granting the examination is a
treatment record. The only mention of treatment in § 7402 is contained in
subsection (b) and that clearly only concerns defendants actually found
incompetent by the Court. See id. at § 7402(b). The procedures for
requesting and granting an incompetency examination do not require the
defendant be actively in treatment, nor do they require a defendant to enter ____________________________________________
3 In this regard, § 7402 is an anomaly within the MHPA, which primarily deals
with mental health treatment. Cf. Commonwealth v. Humphrey, --- A.3d --- , --- 2022 WL 4542120, at *11 (Pa. Sept. 29, 2022) (noting that “[t]he MHPA, enacted in 1976, governs the provision of inpatient psychiatric treatment and involuntary outpatient treatment, and its purpose is to assure the availability of adequate treatment to persons who are mentally ill, and to establish procedures to effectuate this purpose”) (internal citation omitted). Moreover, unlike other mental health examinations conducted in criminal proceedings, there is no provision in our Rules of Criminal Procedure restricting access to information disclosed or obtained in the course of an incompetency examination. Cf. Pa.R.Crim.P. 569 (discussing mental health examinations retained by the Commonwealth or ordered by the court, but stating that the rule does not apply to proceedings under § 7402), 703(A) (discussing pre-sentence mental health examinations).
-6- J-S07011-22
mental health treatment to obtain an examination. See id. at § 7402(e)(1)
(noting that an examination will be conducted “as an outpatient examination
unless an inpatient examination is, or has been, authorized under another
provision of this act”). 4 Finally, nothing in § 7402 requires the petitioning
party to include the details of a defendant’s mental health or treatment as
part of the petition filed with the trial court. Thus, it is clear that the plain
language of § 7402 does not implicate treatment or documents regarding
treatment.5
In light of the plain language of the applicable statutory provisions for
the determination of competency to stand trial, I conclude that an analysis of
4 Our courts have held that records of voluntary outpatient treatment are outside of the scope of the MHPA and not protected from disclosure under the MHPA. See Tavella-Zirilli v. Ratner Companies, L.C., 266 A.3d 696, 701 (Pa. Super. 2021).
5 Furthermore, in Article 4 of the MHPA, entitled “Determination Affecting those Charged with Crime or Under Sentence,” the legislature sets forth separate procedures for petitions for “examination and treatment.” For example, § 7401 distinguishes “examination and treatment” for a defendant who is or becomes severally mentally disabled. See 50 P.S. § 7401(a) (prohibiting examination and treatment at a Veterans Administration facility if such examination and treatment requires the preparation of a competency report). Likewise, § 7407 establishes distinct procedures for the “examination and treatment” of defendant charged with crimes and who believe they are in need of treatment. See id. at § 7407(a) (requiring an individual to provide a physician’s certification about the necessity of treatment). These uses of “examination and treatment” in §§ 7401 and 7407, when juxtaposed with § 7402(c), which only refers to applications for incompetency examinations, without reference to treatment, further supports a conclusion that a § 7402 petition for a preliminary incompetency examination does not implicate treatment or require additional documents or details of treatment in order to support a request for an incompetency examination.
-7- J-S07011-22
the general confidentiality provision of the MHPA in § 7111 is unwarranted as
this general provision is not implicated by a petition for an incompetency
examination under § 7402. The confidentiality provisions of the MHPA in
§ 7111 provide that “[a]ll documents concerning persons in treatment shall
be kept confidential, and, without the person’s written consent, may not be
released or their contents disclosed to anyone . . ..” 50 P.S. § 7111(a).
Section 7104 of the MHPA discusses the meaning and parameters of treatment
as “diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain
and distress and to facilitate the recovery of a person from mental
illness and shall also include care and other services that supplement
treatment and aid or promote such recovery.” See id. § 7104 (emphasis
added). As examined above, a petition for an incompetency examination as
set forth in § 7402 (the relevant statutory provision at issue in this appeal)
implicates neither “treatment” nor a “document concerning persons in
treatment” pursuant to § 7111 because it does not require an individual to be
in treatment, nor does a request for an incompetency examination (or the
examination itself) intend to alleviate pain and distress due to mental illness.
See id. The incompetency examination is limited to evaluation of a criminal
defendant to determine whether a criminal defendant is able to assist in his
defense and stand trial. Thus, I would hold that the privilege created by
§ 7111(a) does not apply to Nuzzo’s petition for a competency determination
itself, and conclude that Nuzzo has not established that § 7111(a) requires
sealing of his § 7402 petition. Accordingly, I am constrained to disagree with
-8- J-S07011-22
the majority’s holding that Nuzzo’s petition for an incompetency examination
falls within the scope of “all documents concerning persons in treatment” such
that sealing is required. See Majority Opinion at 24-25.
However, in reviewing this specific petition I would conclude certain
redactions may be appropriate. Although not required by § 7402, Nuzzo’s
petition voluntarily disclosed mental health information, including dates of
hospitalizations, names of doctors and therapists, and the opinions of those
doctors.6 To the extent counsel disclosed documents or the contents of
documents concerning Nuzzo’s mental health treatment, that information
implicates the protections by § 7111(a), and public access to those disclosures
should be restricted. See 50 P.S. § 7111(a) (prohibiting the disclosure of the
contents of treatment documents). Therefore, I would remand for the trial
court to redact counsel’s disclosures of the contents of the documents
concerning Nuzzo’s treatment to the extent such disclosures within the ____________________________________________
6 To the extent that the majority suggests that the attachment of such documents to an incompetency petition is necessary to establish a prima facie question of incompetency, I respectfully disagree. As noted above, § 7402 does not require the pleading or attachment based on documents concerning treatment. In crafting a § 7402 request there are alternatives to attaching confidential medical records to said petition such as requesting a hearing or including in the petition a request for the court to review sensitive material in camera if the court deems it necessary.
In the case sub judice, I believe that this Court should not create new law potentially protecting all petitions filed with the trial court under § 7402 as confidential mental health documents based on an individual attorney’s decision to insert sensitive mental health information in a petition that did not statutorily or procedurally require such information.
-9- J-S07011-22
petitions which implicate § 7111.7 The trial court’s order, however, does not
implicate § 7111.
Thus, I respectfully concur in part and dissent in part.
7 The trial court may have recognized this fact when it initially directed that
an amended petition be public “subject to the exclusion of communications” from Nuzzo’s treatment providers. Nevertheless, Nuzzo’s original and amended petitions for an incompetency examination remain a part of the open record at the time of this appeal, and the trial court has apparently entered a subsequent order directing that the original and amended petition be filed as a public document. See Order, 6/1/21.
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