The opinion of the court was delivered by: President Judge Leadbetter
SUBMITTED: April 23, 2010
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
In these consolidated appeals, Northumberland County Children and Youth Services (CYS) and S.C. seek review of the order of the Department of Public Welfare, Bureau of Hearings and Appeals (Bureau), directing CYS to provide S.C. with documents that CYS' expert witness would use at a hearing scheduled on S.C.'s request for expungement of the indicated child abuse report. CYS argues that 55 Pa. Code § 3490.104, relied on by the Bureau to support the discovery order, is invalid because it conflicts with the confidentiality provision in Section 6340 of the Child Protective Services Law (Law), as amended, 23 Pa. C.S. § 6340. In her appeal, S.C. argues that the Bureau should have required CYS to produce all documents and information requested in her motion to compel discovery. This Court has raised the issue of whether the Bureau's order constitutes a collateral order appealable as of right under Pa. R.A.P. 313.
On February 4, 2009, CYS received an oral report that S.C. physically abused her infant son, S.P., who was born in January 2009. On March 6, 2009, CYS issued an indicated report (Form CY-48), naming S.C. and the child's father as perpetrators of child abuse. In the report, CYS stated:
The minor child was seen at Janet Weis Children's Hospital Geisinger [M]edical Center. The physician documented seizure activity and subdural hematomas and concluded these injuries were the result of physical abuse. The alleged perpetrators were interviewed and denied any abuse or neglect of the minor child. They also could not provide an explanation for the injuries although they both were primary caretakers for the child. This case meets criteria for serious physical injury.
Reproduced Record (R.R.) at 33. The Department of Public Welfare (Department) subsequently determined that the indicated report was accurate and was being maintained in a manner consistent with the Law.*fn1
S.C. appealed the Department's determination to the Bureau and requested that the indicated report be expunged. The Bureau then scheduled a hearing for September 17, 2009 and directed S.C. and CYS to comply with the Bureau's Standing Practice Order issued on March 28, 2008. Part 7 (Discovery), Rule 22(b) and (e) of the Standing Practice Order provides:
(b) The practice of the Bureau has been to direct parties to exchange material and relevant information which a party intends to use in a formal proceeding as soon as practicable after a hearing has been scheduled in order to avoid delay of the hearing date.
.. (e) A Witness List for Child Abuse Expunction appeals shall be filed according to the instruction specified in the Unified Pre-Hearing Filing.
R.R. at 50-51 (emphasis in original).*fn2 CYS filed a Unified Pre-Hearing Filing, listing as its witnesses the caseworker, Jill Stender, and the pediatrics inpatient director at Geisinger Medical Center and S.P.'s treating physician, Paul J. Bellino, M.D. CYS provided S.C. with a copy of the indicated report and stated that Dr. Bellino's report would be provided on the day of the hearing.
S.C. thereafter filed a motion to compel CYS to produce the following documents and information:
1. The expert report of Dr. Bellino, expert witness for [CYS].
2. All documentation, including medical records and films of S.P., upon which Dr. Bellino is using or has used to form ...