120 A.3d 1078
Pa. Commw. Ct.2015Background
- M.L. sought expunction of an "indicated" child-abuse report identifying him as his daughter L.S.'s perpetrator; an ALJ scheduled an expungement hearing.
- DPW/CYS served a subpoena on V.W., a Pittsburgh Action Against Rape (PAAR) sexual-assault counselor who had counseled L.S., ordering her to testify about communications with L.S. at the expungement hearing.
- PAAR and V.W. moved to quash, invoking the statutory sexual-assault counselor–victim privilege (42 Pa.C.S. § 5945.1(b)(1)); L.S. had not provided written waiver.
- The ALJ denied the motion to quash, ordered V.W. to testify, and the testimony was given; PAAR appealed the denial to the Commonwealth Court.
- The court treated the ALJ’s denial as an appealable collateral order and addressed whether 23 Pa.C.S. § 6381(c) (CPSL) displaces the counselor–victim privilege in child-abuse expunction proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ’s order denying a motion to quash a subpoena is immediately appealable | Order involves disclosure of privileged communications; collateral-order review required to prevent irreparable loss of privilege | DPW agreed the order is collateral and appealable | Appealable as a collateral order (separable, important right, irreparably lost) |
| Whether sexual-assault counselor–victim privileged communications (42 Pa.C.S. § 5945.1) bar testimony at an expungement hearing | PAAR: privilege is absolute absent written consent; testimony should be excluded to protect victim privacy | DPW: CPSL § 6381(c) governs child-abuse proceedings and renders such privileges inapplicable for excluding evidence in expunction hearings | Held: CPSL § 6381(c) prevails; counselor–victim privilege does not bar testimony in child-abuse expungement proceedings |
| Whether T.D. (2012) controlling when privilege asserted by a victim | PAAR: T.D. distinguishable because it involved an alleged perpetrator/victim different context | DPW: T.D. applies broadly to counselor–client privileges in CPSL expunction hearings | Held: T.D. is indistinguishable and controls; § 6381(c) permits admission despite statutory privilege |
| Whether public-policy or privacy concerns require preserving § 5945.1 despite § 6381(c) | PAAR: preserving privilege better protects victims and counseling efficacy | DPW: exclusion would undermine CPSL purpose to protect children and prevent further abuse | Held: Legislative judgment in CPSL to allow such testimony governs; policy arguments for carving out privilege are for the legislature |
Key Cases Cited
- T.D. v. Department of Public Welfare, 54 A.3d 437 (Pa. Cmwlth. 2012) (held CPSL § 6381(c) permits admission of privileged counselor testimony in expunction hearings)
- P.R. v. Department of Public Welfare, 801 A.2d 478 (Pa. 2002) (discusses CPSL’s purpose to prevent further child abuse and encourage reporting)
- MarkWest Liberty Midstream & Resources, LLC v. Clean Air Council, 71 A.3d 337 (Pa. Cmwlth. 2013) (recognizes discovery orders affecting privileged materials are appealable collateral orders)
- Commonwealth v. Kennedy, 876 A.2d 939 (Pa. 2005) (denial of subpoena-quash implicating work-product/privilege is collateral-order appealable)