IN RE: PETITION FOR ENFORCEMENT OF SUBPOENAS ISSUED BY THE HEARING EXAMINER IN A PROCEEDING BEFORE THE BOARD OF MEDICINE APPEAL OF: M.R.
ARGUED: December 5, 2018
from the Order of the Commonwealth Court entered on September
1, 2016, at No. 373 M.D. 2016, granting the Petition to
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
direct appeal, we are asked to consider the enforceability of
a series of subpoenas obtained by a physician for testimony
and treatment records relating to other providers' care
of the physician's former patient, as well as related
questions regarding the scope and applicability of numerous
statutes that protect a patient's medical information.
The Commonwealth Court granted the physician's petition
to enforce the subpoenas. Because we conclude that the
Commonwealth Court lacked subject matter jurisdiction to
decide the issue, we must vacate that court's order.
disposition requires only a brief summary of the factual
background. Sarah G. DeMichele, M.D., is a board-certified
psychiatrist licensed to practice medicine in Pennsylvania.
From August 2011 through February 2013, Dr. DeMichele
provided psychiatric care to M.R. Throughout her time under
Dr. DeMichele's care, M.R. struggled with suicidal
ideations and engaged in a pattern of self-harming behavior,
which she discussed regularly with Dr. DeMichele. In December
2012, M.R.'s self-inflicted injuries necessitated
emergency medical treatment. M.R. ultimately was transferred
to the Trauma Disorders Program at Sheppard Pratt Health
System ("Sheppard Pratt") in Baltimore, Maryland.
At Sheppard Pratt, M.R. was treated by psychiatrist Richard
Loewenstein, M.D., and psychologist Catherine Fine, Ph.D.
During the course of his treatment of M.R., Dr. Loewenstein
obtained M.R.'s medical records from Dr. DeMichele. On
March 31, 2014, Dr. Loewenstein submitted a complaint to the
Professional Compliance Office of Pennsylvania's State
Board of Medicine ("Board"), in which he alleged
that Dr. DeMichele's care of M.R. was professionally
deficient. Dr. Loewenstein's complaint prompted an
investigation and, ultimately, the initiation of disciplinary
proceedings against Dr. DeMichele.
September 24, 2015, the Pennsylvania Department of
State's Bureau of Professional and Occupational Affairs
("Bureau") filed an order directing Dr. DeMichele
to show cause as to why the Board should not suspend, revoke,
or restrict her medical license, or impose a civil penalty or
the costs of investigation. Dr. DeMichele filed a counseled
response to the order, denying the allegations and requesting
a hearing before a hearing examiner. A hearing on the
disciplinary proceeding was scheduled for June 15, 2016.
advance of the hearing, Dr. DeMichele requested that the
hearing examiner issue subpoenas for the testimony of M.R.
and the medical records of Dr. Loewenstein, Dr. Fine,
Sheppard Pratt, and M.R.'s former treating psychologist,
April Westfall, Ph.D. Relying upon the authority provided
under 63 P.S. § 2203(c),  the hearing examiner issued the
requested subpoenas. However, when served with the subpoenas,
all of M.R.'s treatment providers refused to release
their records absent a court order or M.R.'s
authorization. M.R. subsequently refused to authorize the
release of her records.
9, 2016, Dr. DeMichele filed with the hearing examiner a
motion to dismiss the disciplinary action or, in the
alternative, to grant a continuance of the proceeding in
order to allow her to apply to the Commonwealth Court for an
order compelling compliance with the subpoenas. On June 10,
2016, the hearing examiner denied Dr. DeMichele's motion
to dismiss, but granted a continuance so that Dr. DeMichele
could commence an action to enforce the subpoenas.
1, 2016, Dr. DeMichele filed a Petition to Enforce Subpoenas
("Petition") in the Commonwealth Court, asking that
court to order M.R., Sheppard Pratt, and Drs. Loewenstein,
Fine, and Westfall to comply with the subpoenas. Dr.
DeMichele did not specify whether she commenced the action in
the Commonwealth Court's original or appellate
jurisdiction. See 42 Pa.C.S. §§ 761
(original jurisdiction); 763 (direct appeals from government
agencies). Dr. DeMichele's Petition did not name any
party, but she served the Petition on the Board and the
Bureau (collectively, the "Commonwealth"). Dr.
DeMichele did not serve the Petition upon M.R. or the
treatment providers against whom she sought enforcement of
the subpoenas. However, upon receiving a courtesy copy of the
Petition, M.R. retained counsel and sought to intervene in
the enforcement action.
Commonwealth Court held a hearing on September 1, 2016,
following which the court granted Dr. DeMichele's
Petition and ordered that each subpoena be enforced. After
the Commonwealth Court denied her motion for reconsideration,
M.R. filed a notice of appeal to this Court. On appeal, M.R.
argued for the first time that the Commonwealth Court lacked
subject matter jurisdiction to entertain Dr. DeMichele's
Petition. On August 22, 2017, this Court directed
the Commonwealth Court to prepare an opinion addressing
M.R.'s allegations of error, including the jurisdictional
April 26, 2018, the Commonwealth Court issued an opinion
addressing M.R.'s claims. In re Petition for
Enf't of Subpoenas Issued by the Hearing Exam'r in a
Proceeding before the Bd. of Med., 373 M.D. 2016 (Pa.
Cmwlth. Apr. 26, 2018) (unpublished) (hereinafter,
"Commonwealth Court Opinion"). Concerning subject
matter jurisdiction, the Commonwealth Court reasoned that it
exercised original jurisdiction over Dr. DeMichele's
Petition. The Commonwealth Court first appeared to invoke
Subsection 761(a)(4) of its original jurisdiction statute,
which establishes the Commonwealth Court's jurisdiction
over any civil action or proceeding, "[o]riginal
jurisdiction of which is vested in the Commonwealth Court by
any statute hereafter enacted." 42 Pa.C.S. §
761(a)(4). That subsequently enacted statute, the
Commonwealth Court reasoned, was the Medical Practice Act of
1985 ("MPA"),  one provision of which authorizes the
Board to "apply to Commonwealth Court to
enforce its subpoenas." 63 P.S. § 422.9(c). The
Commonwealth Court recognized that the "instant
proceeding differs in nature" from one that typically
would fall under 63 P.S. § 422.9(c) "because the
Board did not initiate the action." Commonwealth Court
Opinion at 11. The Commonwealth Court did not resolve the
apparent inconsistency with the language of the MPA, instead
offering, seemingly in the alternative, different bases for
its exercise of original jurisdiction.
Commonwealth Court reasoned that subpoena enforcement actions
are "proceedings '[b]y the Commonwealth
government,' as described in Section 761(a)(2) of the
Judicial Code." Id. (quoting 42 Pa.C.S. §
761(a)(2)). The court quoted this Court's decision in
Pennsylvania Human Relations Commission v. Lansdowne Swim
Club, 526 A.2d 758 (Pa. 1987), wherein we stated that,
"[i]n a subpoena enforcement proceeding, the action is
brought by an agency of the Commonwealth and Commonwealth
Court's jurisdiction is original and concurrent with the
courts of common pleas." Commonwealth Court Opinion at
11 (quoting Lansdowne, 526 A.2d at 760). Thus, the
Commonwealth Court suggested that the action was brought
"[b]y the Commonwealth government," establishing
jurisdiction under 42 Pa.C.S. § 761(a)(2).
court next invoked Subsection 761(a)(1) of its original
jurisdiction statute, which provides that the Commonwealth
Court shall have original jurisdiction over civil actions
brought "[a]gainst the Commonwealth government." 42
Pa.C.S. § 761(a)(1). With regard to Subsection
761(a)(1), the court reasoned:
Dr. DeMichele filed the Petition with this court to which the
Commonwealth filed an answer and alleged new matter,
asserting that the subpoenaed records were protected by
privilege and statutory confidentiality provisions. Two
Commonwealth attorneys entered their appearances to oppose
the Petition. Thereafter, the Commonwealth appeared at
argument before this court in opposition to Dr.
DeMichele's Petition. M.R. appeared at the hearing based
upon her application and fully participated. For these
reasons, the court had subject matter jurisdiction over Dr.
DeMichele's Petition against the Commonwealth.
Court Opinion at 12 (capitalization modified; footnotes
law has long established that, in order for the Commonwealth
Court to exercise original jurisdiction under 42 Pa.C.S.
§ 761(a)(1), the Commonwealth must be an indispensable
party to the action. See, e.g., Annenberg v.
Commonwealth, 686 A.2d 1380, 1384 (Pa. Cmwlth. 1996)
("[T]he Commonwealth must be an indispensable party to
the action for Section 761(a)(1) to apply."); see
also CRY, Inc. v. Mill Serv. Inc., 640 A.2d 372, 377-78
(Pa. 1994)). In a footnote, the Commonwealth Court briefly
addressed M.R.'s contention that the Commonwealth was not
an indispensable party to Dr. DeMichele's action. Because
the Board and Bureau were the only entities that Dr.
DeMichele served with her Petition, the Commonwealth Court
reasoned that "the Commonwealth was not one of several
defendants, it was the only defendant." Commonwealth
Court Opinion at 12-13 n.15. The court did not further
address the standard by which a party is determined to be
indispensable to an action.
receipt of the Commonwealth Court's opinion, we granted
the parties the opportunity to file supplemental briefs
addressing, inter alia, the Commonwealth Court's
finding of subject matter jurisdiction. M.R. contends
that Dr. DeMichele's Petition cannot be construed as
commencing an action "[a]gainst the Commonwealth
government," 42 Pa.C.S. § 761(a)(1), because Dr.
DeMichele "sought no judicial relief of any kind against
the Board or the Bureau." Supplemental Brief for M.R. at
4. Rather, M.R. argues, "the Petition merely recited
various arguments as to why [Dr.] DeMichele, a private party,
should be granted an order compelling enforcement of five
subpoenas that sought documents and/or testimony from the
five private respondents." Id. at 4-5.
argues that neither the Board nor the Bureau qualify as
indispensable parties to this matter. Supplemental Brief for
M.R. at 5 (citing Pa. State Educ. Ass'n ex rel.
Wilson v. Commonwealth, Dept. of Cmty. and Econ. Dev.,
50 A.3d 1263, 1277 (Pa. 2012) (hereinafter,
"PSEA"); CRY, 640 A.2d at
377-78). M.R. reiterates that Dr. DeMichele sought
enforcement of the subpoenas against private parties, and
that neither the Board nor the Bureau were in possession of
any of the materials implicated in the subpoenas. M.R.
characterizes the Board and the Bureau as "mere
observers" of the action, not indispensable parties
thereto. Id. at 5.
further disputes the Commonwealth Court's reliance upon
our decision in Lansdowne, contending that
Lansdowne does not control this matter because,
therein, the subpoena enforcement proceeding was brought by
the Pennsylvania Human Rights Commission-an agency of the
Commonwealth. Here, M.R. reiterates, a private party
commenced the subpoena enforcement proceeding. M.R. argues
that the Commonwealth Court erred in relying upon this
Court's statement that, "[i]n a subpoena enforcement
proceeding, the action is brought by an agency of the
Commonwealth . . . ." Lansdowne, 526 A.2d at
760. M.R. asserts that this was "not a statement
intended to convert subpoena enforcement actions commenced by
one private individual against another into original
jurisdiction cases lying in the Commonwealth Court."
Supplemental Brief for M.R. at 7. Rather, M.R. continues, the
"quoted language merely addressed the facts before the
Court, which involved a subpoena enforcement action commenced
by a Commonwealth agency." Id.
initial brief, Dr. DeMichele contended that her Petition
implicated the Commonwealth Court's appellate
jurisdiction, as an appeal from a final order of an
administrative agency under 42 Pa.C.S. § 763(a). Brief
for Dr. DeMichele at 20-22. However, following the
Commonwealth Court's issuance of its opinion, Dr.
DeMichele now takes the position that original jurisdiction
lay in the Commonwealth Court pursuant to 42 Pa.C.S. §
761(a)(1), because her action was against the Commonwealth
and the Commonwealth was an indispensable party. Dr.
DeMichele contends that the subpoena enforcement proceeding
affects the Commonwealth's substantive rights not only in
the underlying disciplinary proceeding, but also in future
such disciplinary proceedings. Supplemental Brief for Dr.
DeMichele at 18-19.
DeMichele also addresses the Commonwealth Court's
reliance upon Subsection 422.9(c) of the MPA. Like the
Commonwealth Court, Dr. DeMichele acknowledges that this
provision authorizes the Board "to apply to
Commonwealth Court to enforce its subpoenas," but
contains no similar authorization for private individuals. 63
P.S. § 422.9(c). Recognizing that the absence of
jurisdiction in the Commonwealth Court would require her to
seek relief in various Courts of Common Pleas, Dr. DeMichele
advances the argument that such a process would be
inefficient and could lead to inconsistent rulings.
See Supplemental Brief for Dr. DeMichele at 20. Dr.
DeMichele contends that it is nonsensical to conclude that
the Commonwealth may seek enforcement of its subpoenas in the
Commonwealth Court, but that a private party respondent in a
disciplinary proceeding is not so authorized. Id.
subject matter jurisdiction lies in the Commonwealth Court is
a question of statutory interpretation, as to which our
standard of review is de novo and our scope of
review is plenary. Whitmoyer v. W.C.A.B. (Mountain
Country Meats), 186 A.3d 947, 954 (Pa. 2018). In all
matters of statutory interpretation, our review is guided by
the rules of construction set forth in the Statutory
Construction Act of 1972. See 1 Pa.C.S. §§
1901-91. In construing statutory language, our foremost
object is to "ascertain and effectuate the intention of
the General Assembly." 1 Pa.C.S. § 1921(a). As we
commonly note, the "best indication of legislative
intent is the plain language of a statute."
Commonwealth by Shapiro v. Golden Gate Nat'l Senior
Care LLC, 194 A.3d 1010, 1027 (Pa. 2018). "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." 1 Pa.C.S. § 1921(b).
these precepts to the statutes implicated herein, we conclude
that the Commonwealth Court lacked subject matter
jurisdiction to entertain Dr. DeMichele's Petition. We
first reject Dr. DeMichele's argument that the
Commonwealth Court properly exercised its appellate
jurisdiction. The pertinent statute provides that "the
Commonwealth Court shall have exclusive jurisdiction of
appeals from final orders of government
agencies." 42 Pa.C.S. § 763(a) (emphasis added). A
final order is one that "disposes of all claims and of
all parties." Pa.R.A.P. 341(b)(1). Rule 341 additionally
provides that the issuing tribunal may designate as final an
order that does not dispose of all claims and all parties
"only upon an express determination that an immediate
appeal would facilitate resolution of the entire case."
Pa.R.A.P. 341(c). "In the absence of such a
determination and entry of a final order, any order or other
form of decision that adjudicates fewer than all the claims
and parties shall not constitute a final order."
DeMichele's action was not, as she claims, an appeal from
a final order issued by the hearing examiner. Although the
hearing examiner issued an order on June 10, 2016, in order
to allow Dr. DeMichele to proceed with her Petition in the
Commonwealth Court, this was an interlocutory order that did
not dispose of any claims or parties, and was not designated
as final upon an express determination by the hearing
examiner that immediate appeal would facilitate resolution of
the entire case. Indeed, the hearing examiner's order
granted a continuance of the proceedings, an order which by
its nature does not dispose of claims or parties but, rather,
postpones disposition. Accordingly, there was no final
administrative order from which an appeal to the Commonwealth
Court would lie under 42 Pa.C.S. § 763(a).
further find no basis for the Commonwealth Court's
exercise of original jurisdiction. In short, this was an
action neither by nor against the Commonwealth, the
Commonwealth was not an indispensable party, and the MPA
provides no authorization for private parties to bring
subpoena enforcement actions in the Commonwealth Court. We
address each of these points in turn.
the underlying disciplinary action was commenced by the
Bureau, a Commonwealth party, Dr. DeMichele's Petition
initiated a distinct cause of action. As M.R. stresses, Dr.
DeMichele, a private party, commenced the instant enforcement
proceedings against other private individuals and entities.
Plainly, this was not an action "[b]y the Commonwealth
government." 42 Pa.C.S. § 761(a)(2). The
Commonwealth Court's reliance upon Lansdowne was
misplaced. In Landsdowne, we held that original
jurisdiction properly lay in the Commonwealth Court under
Subsection 761(a)(2) because the subpoena enforcement
proceeding therein was "brought by an agency of the
Commonwealth." Lansdowne, 526 A.2d at 760. To
the extent that our reasoning in Lansdowne may be
read to suggest that all subpoena enforcement proceedings
fall within the ambit of 42 Pa.C.S. § 761(a)(2), as the
Commonwealth Court appears to have concluded, we must clarify
that Lansdowne does not stand for such a
similar reasons, Dr. DeMichele's Petition did not
commence an action "[a]gainst the Commonwealth
government." 42 Pa.C.S. § 761(a)(1). Dr.
DeMichele's Petition did not seek relief from the Board
or the Bureau. Rather, it sought to compel private parties to
comply with the subpoenas. As noted above, Dr.
DeMichele's Petition did not name any respondents, but
she served the Petition upon the Commonwealth, and the Bureau
filed an answer and new matter in response. Such was the
basis for the Commonwealth Court's finding that the
Commonwealth was an indispensable party, because "it was
the only defendant." Commonwealth Court Opinion at 13
n.15. However, neither naming nor serving a Commonwealth
party alone is sufficient to establish indispensability.
See Ballroom, LLC v. Commonwealth, 984 A.2d 582, 588
(Pa. Cmwlth. 2009) ("[I]t is well settled that merely
naming the Commonwealth or a Commonwealth party as one of
several defendants does not necessarily establish this
Court's original jurisdiction under Section 761.");
see also PSEA, 50 A.3d at 1281-82 (Todd, J.,
concurring) ("[C]ase law clarifies that naming a
Commonwealth agency is not enough to satisfy the
jurisdictional requirement; the agency must also be an
Court has set forth several factors to consider when
inquiring as to ...