Summary
vacating this Court's order because this Court lacked original jurisdiction
Summary of this case from Wisniewski v. FrommerOpinion
No. 35 EAP 2016
08-20-2019
IN RE: PETITION FOR ENFORCEMENT OF SUBPOENAS ISSUED BY the HEARING EXAMINER IN A PROCEEDING BEFORE the BOARD OF MEDICINE Appeal of: M.R.
OPINION
In this 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.
Our 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.
On 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.
See 63 P.S. § 2203(a) ("Notwithstanding any other provision of law, the Commissioner of the Bureau of Professional and Occupational Affairs, after consultation with the licensing boards and commissions, shall appoint such hearing examiners as may be necessary to conduct hearings in disciplinary matters before a licensing board or commission. Each licensing board and commission shall have the power to decide if a specific disciplinary matter or type of disciplinary matter is to be heard by the licensing board or commission itself or by a hearing examiner appointed pursuant to this subsection."); 49 Pa. Code § 16.51 ("Hearing examiners are appointed by the Governor's Office of General Counsel to hear matters before the Board. Unless otherwise ordered by the Board, disciplinary matters shall be heard by a hearing examiner.").
In 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.
Subsection 2203(c) provides:
Such hearing examiners shall have the power to conduct hearings in accordance with applicable statutes, rules and regulations, to issue subpoenas requiring the attendance and testimony of individuals or the production of pertinent records or other papers by persons whom they believe have information relevant to any matters pending before the examiner and to issue decisions.
63 P.S. § 2203(c).
On June 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.
On July 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.
The 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 challenge.
Although M.R. did not raise the issue of subject matter jurisdiction before the Commonwealth Court, an "objection to lack of subject-matter jurisdiction can never be waived; it may be raised at any stage in the proceedings by the parties or by a court [o]n its own motion." Commonwealth v. Little , 455 Pa. 163, 314 A.2d 270, 272 (1974).
On 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.
63 P.S. §§ 422.1 -422.51a.
The 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 , 515 Pa. 1, 526 A.2d 758 (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).
The 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.
Commonwealth Court Opinion at 12 (capitalization modified; footnotes omitted).
Case 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. , 536 Pa. 462, 640 A.2d 372, 377-78 (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.
Following 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.
We further requested briefing from the Board regarding the question of subject matter jurisdiction, and requested that the Board address "the procedure by which discovery subpoenas issued at the request of a private individual in medical disciplinary cases are typically enforced." Order, 7/18/2018. On behalf of the Board, the Prosecution Division of the Department of State submitted a brief responsive to this Court's order. Regarding subject matter jurisdiction, the Board offers a construction of the applicable jurisdictional statutes consistent with the interpretation that we provide in this Opinion. With regard to the "typical" procedure, the Board states that, "[a]fter reasonable investigation, the Board is not aware of a prior case where a private individual or entity has sought enforcement of a hearing subpoena issued by the board, any other board or commission in the Bureau ... or a hearing examiner." Brief of Prosecution Division of the Department of State, Commonwealth of Pennsylvania, on behalf of the State Board of Medicine, at 7. Absent a statutory basis for jurisdiction in the Commonwealth Court, the Board argues that such enforcement proceedings fall within the general jurisdiction of the Courts of Common Pleas. Id. at 13 (citing 42 Pa.C.S. § 931(a) ).
M.R. 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. , 616 Pa. 491, 50 A.3d 1263, 1277 (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.
M.R. 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.
In her 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.
Dr. 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.
Whether 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) , 646 Pa. 659, 186 A.3d 947, 954 (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 , ––– Pa. ––––, 194 A.3d 1010, 1027 (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).
1 Pa.C.S. §§ 1501 -1991.
Applying 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." Id.
Dr. 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).
We 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.
Although 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 Lansdowne , 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 proposition.
For 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 indispensable party.").
This Court has set forth several factors to consider when inquiring as to the indispensability of a party:
1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?
CRY , 640 A.2d at 375 (quoting Mechanicsburg Area Sch. Dist. v. Kline , 494 Pa. 476, 431 A.2d 953, 956 (1981) ).
Applying CRY 's factors here, we conclude that the Commonwealth is not an indispensable party to Dr. DeMichele's enforcement action. In responding to Dr. DeMichele's Petition, the Bureau did not assert its own rights, but, rather, questioned the validity of the subpoenas absent a court order or M.R.'s consent to the release of her records, and advanced concerns over M.R.'s right to maintain confidentiality in her medical records. That is, the Bureau argued on behalf of M.R.'s rights and interests, not its own. The Board did not participate at all. Although the Commonwealth may have a generalized interest in issues surrounding the enforcement of subpoenas and the protection of privileged material, the Commonwealth's interests are not essential to a determination of the subpoenas' validity and enforceability. As such, the Commonwealth's interests in this matter are too attenuated to warrant a finding that either the Board or the Bureau is indispensable to this action between private parties.
Dr. DeMichele did not bring this action against the Commonwealth; she sought enforcement of the subpoenas against four private individuals and one private entity in order to obtain evidence in the sole possession of those private parties. The Commonwealth, as M.R. notes, "had not received any subpoenas and therefore could not be sued for failure to comply with them." Supplemental Brief for M.R. at 6. Accordingly, the Commonwealth Court's conclusion that the Commonwealth "was the only defendant" lacks support. Commonwealth Court Opinion at 12 n.15. This was not an action against the Commonwealth government, and original jurisdiction therefore did not lie in the Commonwealth Court under 42 Pa.C.S. § 761(a)(1).
We find no support for the Commonwealth Court's conclusion that jurisdiction was established under Subsection 422.9(c) of the MPA. That subsection provides as follows:
(c) Subpoena power. --The board shall have the authority to issue subpoenas, upon application of an attorney responsible for representing the Commonwealth in disciplinary matters before the board, for the purpose of investigating alleged violations of the disciplinary provisions administered by the board. The board shall have the power to subpoena witnesses, to administer oaths, to examine witnesses and to take testimony or compel the production of books, records, papers and documents as it may deem necessary or proper in and pertinent to any proceeding, investigation or hearing
held by it. Medical records may not be subpoenaed without consent of the patient or without order of a court of competent jurisdiction on a showing that the records are reasonably necessary for the conduct of the investigation. The court may impose such limitations on the scope of the subpoena as are necessary to prevent unnecessary intrusion into patient confidential information. The board is authorized to apply to Commonwealth Court to enforce its subpoenas .
63 P.S. § 422.9(c) (emphasis added).
This statutory subsection pertains exclusively to the subpoena powers of the Board. It confers no such prerogative upon private parties. Had the Board sought to enforce a subpoena under Subsection 422.9(c), it would have been "authorized to apply to Commonwealth Court" to do so, id. , and original jurisdiction would lie therein pursuant to 42 Pa.C.S. § 761(a)(4). That is not the case here.
Although not addressed by the Commonwealth Court in this case, investigatory subpoena power in disciplinary matters is further contemplated by 63 P.S. § 2202, the statutory section preceding the section upon which the hearing examiner relied in issuing the subpoenas, 63 P.S. § 2203. See supra n.2. Section 2202 provides:
The General Counsel or his designee shall have the power and his duty shall be to issue subpoenas upon application of an attorney responsible for representing the Commonwealth in disciplinary matters before a licensing board or commission for the purpose of investigating alleged violations of the disciplinary provisions administered by a licensing board or commission, provided that, if their disclosure is subject to a privilege provided by law, patient or client records may not be subpoenaed without the consent of the patient or client or without order of a court of competent jurisdiction showing that the records are reasonably necessary for the conduct of the investigation. The court may impose such limitation on the scope of the subpoena as may be necessary to prevent unnecessary intrusion into patient or client confidential information. The attorney responsible for representing the Commonwealth in disciplinary matters before a licensing board or commission is authorized to apply to Commonwealth Court to enforce the subpoenas . Nothing in this clause shall be construed to excuse a person from producing documents and records as requested by a licensing board or commission under any other provision of law.
63 P.S. § 2202 (emphasis added).
Like the above-referenced provision of the MPA, Section 2202 provides no authorization to private individuals to seek enforcement of subpoenas against other private parties in the Commonwealth Court's original jurisdiction. Rather, Section 2202 states that, with regard to the contemplated subpoenas, the "attorney responsible for representing the Commonwealth in disciplinary matters before a licensing board or commission is authorized to apply to Commonwealth Court to enforce the subpoenas." Id.
Neither the Board nor an attorney representing the Commonwealth sought to enforce the subpoenas at issue. Accordingly, it is plain that the above-cited statutes do not apply, and that original jurisdiction did not thereunder lie in the Commonwealth Court pursuant to 42 Pa.C.S. § 761(a)(4). Finding no basis for the exercise of the Commonwealth Court's subject matter jurisdiction, we are constrained to vacate the court's order. We appreciate Dr. DeMichele's arguments that recourse to various other tribunals may be inconvenient and inefficient. Such piecemeal litigation certainly is less than ideal. However, the jurisdictional statutes are unambiguous, and we may not alter or improve upon their plain language.
Chief Justice Saylor opines that the "issue presented does not relate to subject matter jurisdiction, but rather, concerns standing" under Subsection 422.9(c) of the MPA. Dissenting Opinion at 672 (Saylor, C.J.) (emphasis omitted). We respectfully disagree. The Commonwealth Court is not a court of general jurisdiction; any action commenced therein must fall within a statutory provision which grants that court subject matter jurisdiction. See Pa. Const. art. 5, § 4 ("The Commonwealth Court shall ... have such jurisdiction as shall be provided by law."); 42 Pa.C.S. §§ 761 -64 (setting forth the jurisdiction of the Commonwealth Court). The Chief Justice focuses upon the MPA to the exclusion of the Commonwealth Court's original jurisdiction statute. Because Subsection 422.9(c) of the MPA does not authorize a private party to commence a subpoena enforcement action against other private parties in the Commonwealth Court, jurisdiction over this matter is not "vested in the Commonwealth Court" by the MPA. 42 Pa.C.S. § 761(a)(4). As it concerns the MPA, that is the end of the inquiry.
The order of the Commonwealth Court is vacated.
Justices Todd, Donohue, Dougherty and Mundy join the opinion.
Justices Dougherty and Mundy file concurring opinions.
Justice Baer concurs in the result.
Chief Justice Saylor files a dissenting opinion
JUSTICE DOUGHERTY, concurring
I join the majority opinion and write separately to highlight the procedural vacuum exposed by the underlying factual scenario. In this case, Dr. DeMichele requested and obtained the issuance of subpoenas by the Board of Medicine hearing examiner in disciplinary proceedings related to her own professional conduct. These subpoenas were directed to individuals with an extremely attenuated connection to the Board proceedings — other physicians who also treated M.R. — and whose impressions or opinions, and records of treatment, are obviously subject to psychotherapist/patient privileges. Ostensibly, Dr. DeMichele sought to use testimony and confidential records from these physicians to defend her treatment of M.R. As M.R. did not waive the confidentiality of her relationship with these other physicians by authorizing their participation, they understandably refused to respond to the subpoenas, and Dr. DeMichele filed a "petition for enforcement" in Commonwealth Court. The majority opinion ably explains why this filing — and the Commonwealth Court's resulting enforcement order — were improper.
Although I respectfully disagree with the dissenting position taken by Chief Justice Saylor, I recognize he has nevertheless persuasively outlined some of the statutory inadequacies leading to the present appeal. Dissenting Op. at 673–75.
See also Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 90, 118 S. Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) (" ‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings.’ " (quoting United States v. Vanness , 85 F.3d 661, 663 n.2 (D.C. Cir. 1996) ). See generally Scott Dodson, Jurisdiction and Its Effects , 105 GEO. L.J. 619, 619-21 (2017) (explaining that "[j]urisdiction is experiencing an identity crisis" and "[t]he cracks in jurisdictional theory and doctrine have begun to expose themselves").
What remains unclear is whether the subpoenas should have been issued at Dr. DeMichele's request in any event. See, e.g. , 63 P.S. § 422.9(c) (describing Board authority to issue subpoenas upon application of attorney representing Commonwealth in disciplinary matters; consent of patient or court order required); 63 P.S. § 2202 (Commonwealth attorney may obtain subpoena in disciplinary proceeding with patient's consent). See also Appellant's Supplemental Reply Brief at 12 (noting Board of Medicine indicated its investigation did not reveal "any prior case in which a private individual ... sought enforcement of a hearing subpoena issued by the Board"). The relevant statutory mechanisms appear to contemplate proceedings arising from a complaint by a patient , who would accordingly waive at least some confidentiality, rather than the report of a treating physician, as occurred here. And, finally, if the subpoenas should not have been issued in the first place, it is unclear where and by whom a challenge might have been lodged. In my view, a motion to quash the subpoenas duly filed with the Board might have succeeded on numerous grounds, including relevance and privilege. See, e.g., 63 P.S. § 422.9(c) ("Medical records may not be subpoenaed without consent of the patient or without order of a court of competent jurisdiction on a showing that the records are reasonably necessary for the conduct of the investigation."); 42 Pa.C.S. § 5944 (psychotherapist/patient privilege); 50 P.S. § 7111(a)(1) (confidentiality of treatment records).
More specifically, while I recognize and generally agree with the dissent's evaluation of Dr. DeMichele's standing — or lack thereof — to file an enforcement petition in Commonwealth Court, it begs the question who would be in the position to challenge Dr. DeMichele's standing. The Commonwealth Court enforcement action was not a traditional adversarial proceeding where an opponent might challenge procedural defects. In fact, while M.R. was permitted to intervene in that enforcement action, her physicians, whose records and testimony were the subject of the subpoenas, were not named as parties, were not served with the enforcement petition, and were not provided notice of the related hearing. It appears there is a procedural void in the statutory regime currently applicable to the circumstances, which should be addressed by the General Assembly.
Along these lines, the following commentary harmonizes closely with my thoughts:
[P]urely formalist approaches to characterization doctrine -- insistence on bright-line rules for distinguishing ... jurisdictional from nonjurisdictional rules -- are ill advised. A functional and incremental approach to legal characterization is not just theoretically sound, but also practically necessary for stable, workable law in this area.
Karen Petroski, Statutory Genres: Substance, Procedure, Jurisdiction , 44 LOY. U. CHI. L.J. 189, 190 (2012). Since, however, "habits of legal characterization are pervasive and internalized," id. at 240, it seems that concomitant changes will continue to suffer from fits and starts. Compare Majority Opinion, at 666–70, with In re Roca , 643 Pa. 585, 613 n.17, 173 A.3d 1176, 1193 n.17 (2017) ("We observe ... that jurisdictional questions may involve issues that go beyond whether the controversy at hand falls into a general category.").
A subsequent appeal from the hypothetical Board decision to quash or not to quash might then properly lie in the Commonwealth Court's appellate jurisdiction. See, e.g., 42 Pa.C.S. § 933 (appeals from government agencies); Pa.R.A.P. 341(c) (issuing tribunal may designate order that does not dispose of all claims and all parties as final for purposes of immediate appeal). Although the General Assembly has invested the courts of common pleas with appellate jurisdiction over certain determinations by Commonwealth agencies, see 42 Pa.C.S. § 933(a)(1), these courts do not have jurisdiction over appeals in professional licensing disciplinary matters. See also Dissenting Op. at –––– – –––– n.3.
Although the General Assembly has invested the courts of common pleas with appellate jurisdiction over certain determinations by Commonwealth agencies, see 42 Pa.C.S. § 933(a)(1), these courts do not have jurisdiction over appeals in professional licensing disciplinary matters. See id. Rather, as the majority explains, appellate jurisdiction lies in the Commonwealth Court. See Majority Opinion, at 667 (citing 42 Pa.C.S. § 763(a) (final orders)); see also id. § 702(a) (interlocutory orders).
JUSTICE MUNDY, concurring
I join the majority opinion, because I agree that the record before us lacks any final order to form the basis of the Commonwealth Court's appellate jurisdiction. However, I also believe that the broader impact of this Court's decision in this case will ideally be of limited applicability, constrained by the particular facts before us.
I write separately to make an additional observation concerning the Commonwealth Court's original jurisdiction and the majority's discussion of whether the Commonwealth, acting through the Department of State's Bureau of Professional and Occupational Affairs (Bureau) or the Professional Compliance Office of the Pennsylvania State Board of Medicine (Board), is an indispensable party. The majority explains that the Bureau is not an indispensable party in this case because, although it participated in the proceedings, the issues it raised in opposition to enforcement of the subpoenas primarily concern M.R.'s interests, and that any independent interest of the Bureau or the Board is attenuated at best. Majority Opinion, at 668. I believe this is a closer question than is apparent from the majority's discussion.
Intertwined in the arguments addressing M.R.'s privacy rights and the validity of the subpoenas, is a question regarding the relevance of the materials sought to the underlying disciplinary action against Dr. DeMichele. The Commonwealth Court, in fashioning its order enforcing the subpoenas in this case, recognized as much when it implemented a procedure to limit disclosure of the records sought, in order to assure, in part, "that the records are particularly relevant to Dr. DeMichele's defense." Cmwlth. Ct. Op. at 35. Clearly, for any challenge to the issuance or enforcement of the subpoenas on the ground of relevance, an interest of the Bureau would be implicated, making it an indispensable party under the test relied on by the majority. See CRY, Inc. v. Mill Serv., Inc. , 536 Pa. 462, 640 A.2d 372, 377-78 (1994).
In this case, the Bureau did not object to the subpoenas when issued by the Hearing Examiner, or at any time prior to Dr. DeMichele filing her Petition to Enforce Subpoenas with the Commonwealth Court. Thus, at the time Dr. DeMichele filed her petition, an interest of the Commonwealth had not been placed in contention, and the Commonwealth Court's original jurisdiction was not triggered. Accordingly, under the particular facts of this case, I agree with the majority that the Commonwealth Court lacked original or appellate jurisdiction to address Dr. DeMichele's Petition to Enforce Subpoenas.
CHIEF JUSTICE SAYLOR, dissenting
As the majority explains, Section 422.9(c) of the Medical Practice Act of 1985 states that the "[B]oard [of Medicine] is authorized to apply to Commonwealth Court to enforce its subpoenas." 63 P.S. § 422.9(c). Given that Appellee (Dr. DeMichele), and not the Board, commenced the proceedings in the Commonwealth Court, the majority reasons that the Commonwealth Court lacked subject matter jurisdiction. See Majority Opinion, at 666–67.
In my view, however, the issue presented does not relate to subject matter jurisdiction, but rather, concerns standing , which "focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated." Flast v. Cohen , 392 U.S. 83, 99, 88 S. Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Subject matter jurisdiction, on the other hand, connotes "the competency of the court to determine controversies of the general class to which the case presented for consideration belongs." In re Administrative Order No. 1–MD–2003 , 594 Pa. 346, 354, 936 A.2d 1, 5 (2007) (citations omitted). The Commonwealth Court possesses competency here, as reflected in the majority's discussion of several avenues per which that court's jurisdiction may be invoked to secure the enforcement of subpoenas issued from the administrative agency level. See Majority Opinion, at 667–68.
Since I believe that this case concerns standing, I note that such matters, in Pennsylvania, are generally deemed to be non-jurisdictional, and therefore, implicate the requirement of issue preservation. See, e.g. , In re Nomination Petition of deYoung , 588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006) ("This Court has consistently held that a court is prohibited from raising the issue of standing sua sponte ."). Certainly, the present matter is more complex, given that the governing standing requirement is embedded in a statute. Nevertheless, for good reason, I submit, the default position concerning statutory standing requirements should be that they are non-jurisdictional and waivable, consistent with our longstanding prudential standing requirements, unless the Legislature clearly expresses an intent to elevate their effect to jurisdictional status.
This approach is consistent with the direction in which the Supreme Court of the United States has been moving in recent opinions. As Justice (then Judge) Kavanaugh has explained:
In recent years, the terminology of jurisdiction has been put under a microscope at the Supreme Court. And the
Court has not liked what it has observed -- namely, sloppy and profligate use of the term "jurisdiction" by lower courts and, at times in the past, the Supreme Court itself. These recent Supreme Court opinions have significantly tightened and focused the analysis governing when a statutory requirement is jurisdictional.
Grocery Mfrs. Ass'n v. EPA , 693 F.3d 169, 183-84 (D.C. Cir. 2012) (Kavanaugh, J., dissenting), cited with approval in Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 128 n.4, 134 S. Ct. 1377, 1387 n.4, 188 L.Ed.2d 392 (2014).1
As part of this reexamination, the Supreme Court has established the following standard:
If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.
Arbaugh v. Y & H Corp. , 546 U.S. 500, 515, 126 S. Ct. 1235, 1245, 163 L.Ed.2d 1097 (2006) ; see also Dodson, Jurisdiction and Its Effects , 105 GEO. L.J. at 626 (explaining that "a federal court confronted with a question of jurisdictionality must consider, using textual and contextual cues, whether Congress has clearly stated that the limit at issue is jurisdictional"). I find this approach to be well-reasoned and would adopt it here.2
Responding to my position, the majority stresses that the Commonwealth Court is not a court of general jurisdiction. See Majority Opinion, at 669 n.7. But the federal courts are not courts of general jurisdiction either, see Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374, 98 S. Ct. 2396, 2403, 57 L.Ed.2d 274 (1978) ("It is a fundamental precept that federal courts are courts of limited jurisdiction."), which is why I consider the Supreme Court of the United States' progressive reevaluation of jurisdictional considerations to be pertinent here. The concern of that Court is with not routinely elevating the many and various prescriptions found within statutes -- such as standing requirements and ordinary claims processing rules -- to jurisdictional status in the absence of a clear legislative mandate. And I find the Supreme Court's reasoning and approach to be quite persuasive in the present context. Again, to me, in the simplest terms, the subject matter in this case is the enforcement of subpoenas, and the statutory specification concerning who may bring the action is a matter of standing. After examining the textual and contextual cues, I find no evidence that the Legislature intended to curtail the jurisdiction of the Commonwealth Court relative to such enforcement.
Moreover, there should be avenues available for respondents in professional licensing disciplinary cases to seek enforcement of subpoenas in the Commonwealth Court.3 One set of commentators captured the central reasoning as follows:
Where an administrative agency has issued a subpoena at the request of a party, and the subpoenaed witness has refused to appear, a problem of enforcement presents itself. The normal procedure is appeal to the courts for an order implementing the subpoena -- violation of the order then being punishable as contempt of court. The difficulty lies in the fact that most statutes creating administrative agencies confer the right to appeal for enforcement only upon the administrative body. But if the agency has power to subpoena on behalf of the party, it would seem that a court should hold that the agency has both the right and the duty to appeal for enforcement of subpoenas so issued.
Notes and Legislation, Subpoenas and Due Process in Administrative Hearings , 53 HARV. L. REV. 842, 849 (1940) (emphasis added).
Consistent with these observations, I suggest that a respondent in a professional disciplinary proceeding should be allowed to move for the licensing board to commence enforcement proceedings in the Commonwealth Court. Should the board decline to do so, the respondent should be permitted to attempt to perfect an interlocutory appeal, either as of right under the collateral order doctrine where applicable, see Pa.R.A.P. 313, or permissively. See 42 Pa.C.S. § 702(b) ; Pa.R.A.P. 312 & Ch. 13. Personally, I would take a dim view of a licensing board that would refuse to uphold its own commands and the dignity of its office, absent substantial justification.
I say "the board," because technically there is no statutory authorization for hearing examiners to proceed before the Commonwealth Court, see 63 P.S. § 2203(c) ; whereas, the Board of Medicine, at least, does have such authority. See id. § 422.9(c). Accordingly, if difficulties with enforcement are anticipated, it would be preferable to secure a subpoena through the licensing board, rather than from a hearing examiner.
Another possibility is that the recipient of the subpoena might petition to quash. If such a motion is granted, again, an interlocutory appeal might be justified on the above theories. I would also think that a board would take a disfavored view of a subpoena recipient who simply refuses to honor the subpoena without advancing substantial justification via a motion.
As a caveat, I note that several of the recipients of the subpoenas in this case are out-of-state residents, and a different analysis may apply to them given jurisdictional considerations and the potential applicability of the laws of another state.
A licensed professional subject to disciplinary action should enjoy the prerogative to secure subpoenas for witnesses and documents reasonably necessary to a defense. Accord Notes and Legislation, Subpoenas and Due Process in Administrative Hearings , 53 HARV. L. REV. at 850 (discussing "the serious consequences attendant upon the revocation of a license to practice a profession"). It seems to be just as clear that a reasonable avenue for enforcement should be available to such a respondent. Ultimately, of course, the merits determination will turn upon a balancing of any privileges that may be held by the subpoena's recipient against the interests of the respondent.
Here, however, there is no need to proceed on such a circuitous route, since there was never any objection lodged to Appellee's standing to pursue an enforcement action in the Commonwealth Court. In such circumstances, I respectfully differ with the majority's determination that subject matter jurisdiction is implicated such that sua sponte invocation of a statutory standing requirement is appropriate. And there would seem to be no question that Appellee is aggrieved by the lack of enforcement of subpoenas for purposes of the ordinary prudential standing requirements, which, in any event, have been waived.
Accordingly, I respectfully dissent and would proceed to the merits of the substantive questions presented by Appellant.