Gordon, N. v. Allegheny Valley School

• Court: Superior Court of Pennsylvania
• Decided: September 7, 2017
• Docket: Gordon, N. v. Allegheny Valley School No. 2705 EDA 2016
• Status: Unpublished

Opinion

J-A19021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATHAN GORDON AND KATHLEEN : IN THE SUPERIOR COURT OF GORDON AS PLENARY LEGAL : PENNSYLVANIA GUARDIANS OF AMY MELISSA : GORDON, AN INCAPACITATED : PERSON : : : v. : : No. 2705 EDA 2016 : ALLEGHENY VALLEY SCHOOL AND : NHS HUMAN SERVICES, INC. A/K/A : AND/OR F/K/A NORTHWESTERN : HUMAN SERVICES, INC A/K/A : AND/OR F/K/A THE NORTHWESTERN : CORPORATION : : Appellant :

Appeal from the Order Entered July 19, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2014-03091

NATHAN GORDON AND KATHLEEN : IN THE SUPERIOR COURT OF GORDON AS PLENARY LEGAL : PENNSYLVANIA GUARDIANS OF AMY MELISSA : GORDON, AN INCAPACITATED : PERSON : : : v. : : No. 2709 EDA 2016 : ALLEGHENY VALLEY SCHOOL AND : NHS HUMAN SERVICES, INC. A/K/A : AND/OR F/K/A NORTHWESTERN : HUMAN SERVICES, INC. A/K/A : AND/OR F/K/A THE NORTHWESTERN : COPORATION : : Appellant : J-A19021-17

Appeal from the Order Entered July 19, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2014-03091

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

JUDGMENT ORDER BY DUBOW, J.: FILED SEPTEMBER 07, 2017

In these consolidated appeals, Appellants, Allegheny Valley School and

NHS Human Services, Inc. a/k/a and/or f/k/a Northwestern Human Services,

Inc. a/k/a and/or f/k/a The Northwestern Corporation appeal from July 19,

2016 Orders in which the trial court concluded that Appellants are not

entitled to the statutory privilege afforded in the Peer Review Protection Act

(“PRPA”).1 After review, we are constrained to vacate the Orders and

remand.

The relevant facts and procedural history are as follows. This case

arises from a spinal cord injury sustained in June 2012 by Appellee Amy

Melissa Gordon, an intellectually disabled adult resident of Appellants’

community group home. Appellees, Nathan Gordon, Kathleen Gordon, and

Amy Melissa Gordon, allege that Appellants’ negligence caused Amy to

sustain injuries, which rendered her a paraplegic.

During the course of discovery, Appellees sought to depose a nurse

who had been retained by Appellants to conduct a peer review of the

incidents giving rise to Amy Gordon’s injuries and requested the production

____________________________________________

1 63 P.S. § 425.1 et seq.

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for inspection of original documents relating to her. Appellants objected to

both requests, claiming that its group home for intellectually disabled adults

qualifies as an “other health care facility” under the PRPA, and, thus, entitled

to its statutory privilege. On May 19, 2016, Appellees responded by filing

Motions to Overrule Objections to Discovery based on the PRPA and to

Compel Inspection of Original Records.

A discovery Master held a hearing on Appellants’ Objections and

Appellees’ responding Motions. On July 19, 2016, based on the Master’s

Recommendation, the trial court entered Orders granting Appellees’ Motions,

concluding that Appellants failed to establish that they are a “professional

health care provider under 63 P.S. § [425.2.]” Trial Ct. Op., 9/20/16, at 5.

Appellants timely appealed and Appellants and the trial court complied with

Pa.R.A.P. 1925.

On appeal, Appellants seek a determination that the confidentiality

protections of the PRPA apply to them as a “professional health care

provider.” Appellants’ argument requires us to engage in statutory

interpretation of the PRPA in the context of the facts of the instant case.

Statutory interpretation is a question of law; therefore, our scope of review

is plenary, and our standard of review is de novo. Commonwealth v.

Giulian, 141 A.3d 1262, 1266 (Pa. Super. 2016). Importantly, appellate

courts are not fact-finding courts. Commonwealth v. Grant, 813 A.2d

726, 734 (Pa. 2002) (noting that appellate courts do not act as fact finders).

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The certified record in the instant case does not contain a transcript of

the hearing on Appellees’ Motions that occurred before the discovery Master.

The record is also devoid of the Master’s Recommendation, and any findings

of fact. In particular, there are no findings of fact and conclusions of law

regarding the seminal issue of whether Allegheny Valley School is “approved,

licensed or otherwise regulated to operate in the health care field.” See 63

P.S. § 425.2(1). Rather, this Court has before it an almost 2,500-page

record replete only with allegations and assertions, and appellate briefs

containing the parties’ arguments on their relative positions. Without

findings of fact and conclusions of law, we are unable to provide a proper

review. Thus, we are constrained to remand for the trial court to develop

the factual record as needed and issue findings of fact and conclusions of

law.2 We also direct the trial court to consider, and make findings of fact as

to, whether, even if Appellants are entitled to the statutory privilege under ____________________________________________

2 Appellants also allege that the coordinate jurisdiction rule requires the Montgomery County Court of Common Pleas to find that Appellants are a “professional health care provider” because a judge of the Philadelphia County Court of Common Pleas transferred this matter to Montgomery County pursuant to Pa.R.C.P. No. 1006(a.1) after concluding that Appellants “brought [this action] against a health care provider for a medical professional liability claim.” Trial Ct. Order, 12/4/13. Appellants baldly assert that the decisions of the two courts are “impossible to reconcile[,]” but they fail to cite any authority to support this averment. Appellants’ Brief at 34. Appellants’ failure to develop adequately this issue with citation to relevant authorities constitutes waiver of this issue on appeal. See Lackner v. Glosser, 892 A.2d 21 (Pa. Super 2006) (explaining arguments that are not appropriately developed with citation to relevant authority are waived on appeal).

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the PRPA, the discovery sought by Appellees is “otherwise available from

original sources[.]” See id. at § 425.4.

Orders vacated. Case remanded with instructions. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/7/2017

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