Commonwealth v. Makara

980 A.2d 138, 2009 WL 2606089
CourtSuperior Court of Pennsylvania
DecidedAugust 26, 2009
Docket2011 MDA 2008
StatusPublished
Cited by6 cases

This text of 980 A.2d 138 (Commonwealth v. Makara) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Makara, 980 A.2d 138, 2009 WL 2606089 (Pa. Ct. App. 2009).

Opinion

OPINION BY

FREEDBERG, J.:

¶ 1 This matter is before the court on KidsPeace Corporation’s appeal from the order entered by the Court of Common Pleas of Columbia County on October 16, 2008. We vacate and remand.

¶ 2 Appellee 1 Eugene Makara is charged with twenty-five counts, including rape of child, statutory sexual assault, involuntary deviate sexual intercourse with a person less than 16 years of age, sexual assault, aggravated indecent assault of a child, indecent assault of a person less than 13 years of age, corruption of minors, invasion of privacy, attempted sexual abuse of children, criminal conspiracy, and interception of communications. In the course of the criminal proceeding, Appellee Makara filed a motion seeking disclosure of counseling and educational records of two minor alleged victims from various institutions. On October 16, 2008, without a hearing, the trial court granted the motion and ordered disclosure. Appellant Kidspeace Corporation 2 filed a motion for *140 reconsideration, but no action was taken. Appellant asserts in this appeal that disclosure is not permitted because the requested records are protected under the Mental Health Procedures Act, 50 P.S. § 7101 et seq., and the Psychologist-Patient Privilege Act, 42 Pa.C.S.A. § 5944. 3

¶ 3 Initially, we discuss the ap-pealability of this issue. Generally appeals lie only from final orders. Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308, 1309 (1991). “[I]n general, discovery orders are not final, and are therefore unappealable.” T.M. v. Elwyn, Inc., 950 A.2d 1050, 1055 (Pa.Super.2008), citing Jones v. Faust, 852 A.2d 1201, 1203 (Pa.Super.2004). However, Pennsylvania Rule of Appellate Procedure 313 provides a limited exception, allowing appeals from collateral orders:

Rule 313. Collateral Orders.
General Rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court. 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 irreparably be lost.

Pa.R.A.P. 313.

¶ 4 This court has held that “discovery orders involving privileged information are ... appealable as collateral to the principal action pursuant to Pa.R.A.P. 313.” T.M., 950 A.2d at 1055. In Commonwealth v. Miller, a defendant was charged with various criminal counts and requested records from a counseling center where the victim sought treatment. Miller, 593 A.2d at 1309. The treatment center refused to disclose its files and appealed the trial court’s order directing the center to appear, with all records, at an in camera hearing. Id. This court found that the issue was properly before the court as a collateral order because the disclosure order was separate from the underlying criminal action, the victim’s right to privacy and confidentiality was too important to be denied review, and if review was postponed and disclosure permitted, the victim’s rights would be irreparably lost. Id. at 1309-1310. Further, the court explained: “[I]f we do not address the propriety of appellee’s request for [appellant’s] files in light of the statutorily enacted privilege [42 Pa.C.S.A. § 5945.1] protecting such files, the purpose and utility of the statute, as defined by the privilege, will be undermined severely.” Id. at 1310.

¶ 5 Similarly, in Commonwealth v. Simmons, a defendant facing criminal charges arising out of his alleged abuse of a minor subpoenaed the records of the victim from a mental health treatment center. Simmons, 719 A.2d 336, 338 (Pa.Super.1998). The center’s motion to quash the subpoena was denied. The center refused to comply with the trial court’s order and filed an appeal to this court. In addressing the appealability of the matter, this court stated that “the ... order, requiring [appellant] to produce a complainant’s allegedly confidential and privileged therapeutic records in a criminal matter, is immediately appealable as a collateral order.” Id. at 339.

¶ 6 In the instant matter, Appellant, a third party ordered to disclose records potentially material to a criminal case, alleges that the records are protected by statutory privileges requiring confiden *141 tiality. Disclosure of the records is an issue separate and distinct from the underlying criminal case. Without immediate review, the rights of Appellant, and the alleged victims, would be irreparably lost because disclosure would terminate the confidentiality of the records. Further, the right of privacy of mental health treatment and the records created pursuant to that treatment is of utmost importance, as evidenced by the statutory privileges accorded to such records. See, e.g., Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) (“[T]he purpose of the psychologist-patient privilege is to aid in the effective treatment of the client by encouraging the patient to disclose information fully and freely without fear of public disclosure. We deem this purpose and the underlying considerations to be of paramount concern.”); Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25, 32 (2003) (“The terms of the provision are eminently clear and unmistakable and the core meaning of this confidentiality section of the Mental Health Procedures Act is without a doubt — there shall be no disclosure of the treatment documents to anyone.”). Accordingly, the order in question is properly before this Court under the collateral order doctrine.

¶ 7 “Due process is a flexible concept that calls for such procedural protections as the situation demands.” Adelphia Cablevision Associates of Radnor, L.P. v. University City Housing Co., 755 A.2d 703, 712 (Pa.Super.2000). The Pennsylvania Supreme Court has described the concept of due process as follows:

Due process of law, while incapable of exact definition, generally means laws in the regular course of administration through courts of justice, according to those rules and forms which have been established for the protection of human rights.

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Cite This Page — Counsel Stack

Bluebook (online)
980 A.2d 138, 2009 WL 2606089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-makara-pasuperct-2009.