J-S29033-21

2021 PA Super 240

*Former Justice specially assigned to the Superior Court.

KAREN TAVELLA-ZIRILLI AND DOMINIC 

ZIRILLI, H/W

Appellants

v.

RATNER COMPANIES, L.C. 

(INCORRECTLY IDENTIFIED AS RATNER 

COMPANIES D/B/A HAIR CUTTERY), 

CREATIVE HAIRDRESSERS, INC. D/B/A 

HAIR CUTTERY (INCORRECTLY 

IDENTIFIED AS HAIR CUTTERY), AND 

STEPHANIE RICKARDS,

 Appellees

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

No. 2875 EDA 2019

Appeal from the Order Dated August 8, 2019 

in the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): 180501567

BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 8, 2021

Appellants, Karen Tavella-Zirilli and Dominic Zirilli (the Zirillis), appeal 

from an August 8, 2019, order, which granted in part the motion filed by 

Appellees, Ratner Companies, L.C. and Creative Hairdressers, Inc. d/b/a Hair 

Cuttery, to compel production of mental health records and ordered the Zirillis 

to provide unredacted copies of the records for in camera review by a special 

master for a privilege determination. For the reasons set forth below, we 

reverse.

On May 17, 2018, the Zirillis filed a negligence action against Appellees. 

According to the Zirillis, Ms. Tavella-Zirilli suffered injuries after she received 
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a lengthy hair color treatment at a Hair Cuttery salon, including chemical burns 

to her scalp; permanent scarring from a rash that developed on her scalp and 

spread to her neck, face, arms, and chest; associated pain; headaches; 

neuropathy; a stress-induced relapse of smoking; loss of life’s pleasures; 

mental anguish; embarrassment; and emotional distress. Amended 

Complaint, 7/17/2018, at 7-8. Mr. Zirilli asserted a loss of consortium claim. 

Id. at 8-9.

As part of discovery, Appellees served interrogatories and a request for 

production of documents. Appellees received medical records from Ms. 

Tavella-Zirilli’s primary physician wherein the physician observed, prior to the

salon hair color treatment at issue, areas of Ms. Tavella-Zirilli’s skin with

pockmarks and excoriations. The primary physician’s records also referenced 

Ms. Tavella-Zirilli’s treatment with a mental health provider, mental health 

conditions, and medications that pre-date her salon visit. Similarly, medical 

records from Ms. Tavella-Zirilli’s dermatologist referenced observations of 

excoriations and scars as well as a mental health condition that affects the 

skin. 

Further, as part of this action, Ms. Tavella-Zirilli submitted to an 

independent psychological examination. The examining psychologist 

indicated that, in addition to what was already contained in the 

aforementioned medical records, he believed Ms. Tavella-Zirilli may have also 

been diagnosed previously with other mental health conditions that affect the
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skin, scalp, and hair. With respect to mental health treatment, the Zirillis 

answered Appellees’ interrogatories without objection, and responded to the 

production request by stating that they had already provided all requested 

documents in their possession. 

Subsequently, during their depositions the Zirillis provided additional 

information about marriage counseling they had undergone and mental health 

treatment Ms. Tavella-Zirilli had received at Springfield Psychological, which 

prompted Appellees to provide notice of their intent to serve a non-party 

subpoena on Springfield Psychological and one of its providers to obtain 

records of the Zirillis’ treatment. The Zirillis objected, and Appellees filed a 

motion to strike. The trial court ordered Springfield Psychological to produce, 

to the Zirilli’s counsel, all records in its possession that related to treatment 

provided to the Zirillis. 

After the Zirilli’s counsel received the records, the Zirillis filed a privilege 

log, which indicated that they had received two sets of mental health records 

from Springfield Psychological. The first set, marriage counseling records 

relating to the Zirillis, was produced.1 The second set, Ms. Tavella-Zirilli’s 

mental health records, is the subject of this appeal. The Zirillis objected to 

producing Ms. Tavella-Zirilli’s mental health records on the basis that they

1 The Zirillis redacted a part of one page of the marriage counseling records 

to protect the privacy of third parties. Appellees do not seek to compel 

production of that redacted record.
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were privileged and protected from disclosure by the Mental Health Procedures 

Act (“MHPA”), 50 P.S. § 7101-7503, and/or the psychiatrist/psychologistpatient privilege, codified at 42 Pa.C.S.A. § 5944 of the Judicial Code. 

Appellees moved to strike the privilege objections and compel in camera

review of the records, to which the Zirillis responded. The trial court appointed 

a special master to determine privilege. The special master held a conference 

on August 7, 2019. According to the Zirillis, the special master determined at 

the conference that Ms. Tavella-Zirilli had not waived her right to assert the 

psychiatrist/psychologist-patient privilege, but indicated he nonetheless 

wanted to conduct an in camera review of her mental health records.2 

The Zirillis did not provide the records to the special master for in 

camera review. On August 8, 2019, the trial court granted Appellees’ motion 

to strike, compelled production of Ms. Tavella-Zirilli’s mental health records,

and ordered the Zirillis to provide unredacted copies of all of the records for 

in camera review by the special master to make a privilege determination.

2 There is no transcript of this conference.
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This timely-filed appeal followed.3, 4 The court did not order the Zirillis 

to file a concise statement pursuant to Pa.R.A.P. 1925(b) and none was filed. 

The trial court complied with Pa.R.A.P. 1925(a).5

On appeal, the Zirillis claim that Ms. Tavella-Zirilli’s mental health 

records from Springfield Psychological are privileged and not subject to in

camera review. They raise the following two issues for our review:

1. Whether a trial court Order compelling production of privileged 

mental health records for a in camera review constitutes a 

collateral order appealable as of right and reversible error, as held 

by the Pennsylvania Superior Court inter alia in Farrell v. Regola, 

150 A.3d 87 (2016).

2. Whether a plaintiff does not waive the

psychiatrist/psychologist-patient privilege regarding her personal

mental health records merely by filing a lawsuit, where she does

not allege to have suffered any mental illness nor to have incurred 

mental health treatment expenses as the result of the physical 

injury giving rise to the lawsuit, as held by the Pennsylvania 

Superior Court inter alia in Gormley v. Edgar, 995 A.2d 1197 

(2010).

3 On November 1, 2019, this Court directed the Zirillis to show cause as to 

why the appeal should not be quashed as an appeal from a non-final order. 

The Zirillis responded and on November 15, 2019, this Court discharged the 

order and referred the matter to this panel. We discuss the issue of 

appealability infra.

4 Upon notice that Appellees had initiated bankruptcy proceedings in the State 

of Maryland, this Court stayed the appeal on May 14, 2020, in accordance with 

the automatic stay provision of the U.S. Bankruptcy Code, 11 U.S. § 362. 

Order, 5/14/20. The bankruptcy stay has been lifted and the matter is now 

ready for disposition. Order, 3/19/21.

5 The Honorable John M. Younge, who entered the August 8, 2019, order that 

is the subject of this appeal, was appointed subsequently to the U.S. District 

Court for the Eastern District of Pennsylvania. The Honorable Denis P. Cohen 

issued the Rule 1925(a) opinion.
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Appellants’ Brief at 9 (suggested answers omitted; citation format altered).

Appealability

We begin with the first issue of whether the order from which the Zirillis

appeal is appealable in that appealability implicates our jurisdiction. In the

Interest of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely 

a question of law; the appellate standard of review is de novo and the scope 

of review plenary.” Id. (citation and internal quotation marks omitted). To

be appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an 

interlocutory order appealable by right or permission, 42 Pa.C.S.A. § 702(a)-

(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313. Rule 313 

provides as follows:

(a) General rule.--An appeal may be taken as of right from a 

collateral order of a trial court or other government unit.

(b) Definition.--A collateral order is an order separable from and 

collateral to the main cause of action where the right involved is 

too important to be denied review and the question presented is 

such that if review is postponed until final judgment in the case, 

the claim will be irreparably lost.

Pa.R.A.P. 313.

It is well settled that an order mandating disclosure of records subject 

to privilege, including mental health records, is appealable as a collateral order 

pursuant to Rule 313. Commonwealth v. Segarra, 228 A.3d 943, 948–49 

(Pa. Super. 2020); Pasquini v. Fairmount Behavioral Health Sys., 230 

A.3d 1190, 1194 (Pa. Super. 2020). Thus, the order at issue here is 

appealable as a collateral order.
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Statutory Privilege

Having determined that this Court has jurisdiction over this appeal

pursuant to the collateral order doctrine, we now proceed to examine the 

second issue of whether the Zirillis must produce for in camera review the 

records of Ms. Tavella-Zirilli’s counseling sessions at Springfield Psychological.

“In reviewing the propriety of a discovery order, we determine whether the 

trial court committed an abuse of discretion.” Pasquini, 230 A.3d at 1194

(citation and quotation marks omitted). However, “the privilege asserted is 

codified, and thus, ‘the interpretation of a statute is a question of law, resulting 

in a standard of review that is de novo and a scope of review that is plenary.’” 

Segarra, 228 A.3d at 950, quoting Farrell, 150 A.3d at 96.

As noted, the Zirillis contend the trial court’s August 8, 2019, order 

impermissibly requires them to disclose privileged records for in camera

review. Specifically, they argue that Ms. Tavella-Zirilli’s mental health records 

are protected from disclosure under the MHPA and the 

psychiatrist/psychologist-patient privilege, that they have not implicitly 

waived privilege by initiating this negligence action or seeking damages for 

pain and suffering, and that there are less intrusive means available to obtain 

the same information. Appellants’ Brief at 18-26.

MHPA
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We first examine whether Ms. Tavella-Zirilli’s records are protected by 

the MHPA, keeping in mind that the MPHA is to be strictly construed. Segarra, 

228 A.3d at 950 (citation omitted). “Section 7111 of the MHPA mandates that 

all documentation concerning persons in treatment be kept confidential, in the 

absence of patient consent, except in four limited circumstances.” Id. at 951 

(citation and internal quotation marks omitted); 50 P.S. § 7111(a). 

However, section 7103 of the MHPA specifies that “[t]his act establishes 

rights and procedures for all involuntary treatment of mentally ill persons, 

whether inpatient or outpatient, and for all voluntary inpatient treatment of 

mentally ill persons.” 50 P.S. § 7103. While the Zirillis reference the MHPA 

throughout their brief, they do not present any argument as to its applicability. 

See Appellants’ Brief at 4, 14, 17-21, 23-36; compare Appellees’ Brief at 19-

20 (arguing Ms. Tavella-Zirilli’s records are outside the scope of the MHPA). 

There is nothing in the record to indicate that Ms. Tavella-Zirilli’s treatment at 

Springfield Psychological was anything but voluntary outpatient treatment. 

Accordingly, Ms. Tavella-Zirilli’s mental health records are outside the scope

the MHPA and not protected from disclosure under this statute.

6

 See 

Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010) (holding 

6 The trial court erroneously found the MHPA applicable herein when it 

concluded the Zirillis waived their privilege thereunder. See Trial Court 

Opinion, 4/16/2021, at 5-9. 
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voluntary outpatient mental health treatment records are not encompassed 

within the protection of the MHPA).

Psychiatrist/Psychologist-Patient Privilege

We next analyze the psychiatrist/psychologist-patient privilege, 42 

Pa.C.S.A. § 5944. The Zirillis argue that this privilege protects Ms. TavellaZirilli’s mental health records from disclosure of any kind, including in camera

review. Appellants’ Brief at 4, 9, 14-15, 17-18, 21, 25. The statute provides 

as follows:

No psychiatrist or person who has been licensed under the act of 

March 23, 1972 (P.L. 136, No. 52), [63 P.S. § 1201 et seq.,] to 

practice psychology shall be, without the written consent of his 

client, examined in any civil or criminal matter as to any 

information acquired in the course of his professional services in 

behalf of such client. The confidential relations and 

communications between a psychologist or psychiatrist and his 

client shall be on the same basis as those provided or prescribed 

by law between an attorney and client.

42 Pa.C.S.A. § 5944 (footnote omitted). 

The purpose of the psychiatrist/psychologist-patient privilege is “to aid 

in the effective treatment of the client by encouraging the patient to disclose 

information fully and freely without fear of public disclosure.” Gormley, 995 

A.2d at 1204 (citation and quotation marks omitted). “The privilege is based 

upon a strong public policy designed to encourage and promote effective 

treatment and to insulate the client’s private thoughts from public disclosure.” 

Id. (citation omitted). “This Court holds this privilege in the highest regard, 
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recognizing that such confidential statements are the key to the deepest, most 

intimate thoughts of an individual seeking solace and treatment. However, 

such confidential communications are only protected to the same extent as 

those between an attorney and his client.” Id.

The psychiatrist/psychologist-patient privilege “is designed to protect 

confidential communications made and information given by the client to the 

psychotherapist in the course of treatment, but does not protect the 

psychotherapist’s own opinion, observations, diagnosis, or treatment 

alternatives.” Segarra, 228 A.3d at 953-54 (quoting Farrell, 150 A.3d at 

97-98). The psychiatrist/psychologist-patient privilege “applies not only to 

psychiatrists and psychologists, but to any member of a patient’s treatment 

team.” Segarra, 228 A.3d at 954 (citation omitted). “Moreover, in cases 

where the section 5944 privilege has been found to apply, case law has 

precluded material from being subjected to even in camera review by the trial 

courts.” Segarra, 228 A.3d at 954 (citation, brackets, and quotation marks 

omitted); see also Commonwealth v. Kyle, 533 A.2d 120, 131 (Pa. Super. 

1987) (“Subjecting the confidential file to in camera review by the trial court 

(as well as the appellate courts and staff members) would jeopardize the 

treatment process and undermine the public interests supporting the 

[psychiatrist/psychologist-patient] privilege. Simply stated, an absolute 

privilege of this type and in these circumstances requires absolute 

confidentiality.”).
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Here, Appellees’ discovery requests were general and very broad, 

seeking in some instances a lifetime’s worth of Ms. Tavella-Zirilli’s medical 

records, including mental health treatment.

7

 In their notice of intent to serve 

7 For example, in their request for production of documents, Appellees sought, 

inter alia:

¶ 15. Copies of any and all bills, reports, notes and records 

prepared by any physician, hospital or healthcare provider who 

has examined, evaluated and/or treated [Ms. Tavella-Zirilli] for 

injuries, diseases, deformities or impairments sustained by [Ms. 

Tavella-Zirilli] or suffered from by [Ms. Tavella-Zirilli] prior to 

and/or subsequent to the accident herein.

¶ 18. Any and all medical records in [the Zirillis]’ possession 

regarding any treatment that [Ms. Tavella-Zirilli] has ever 

received for the following:

a. Rashes;

b. Allergies;

c. Skin conditions;

d. Alopecia;

e. Skin reactions;

f. Immunological conditions;

g. Any nervous disorder;

h. Neurodermatitis.

¶ 22. Any and all documents, records, communications, or 

writings identifying [Ms. Tavella-Zirilli]’s treatment by an allergy 

doctor, immunologist, dermatologist, plastic surgeon, 

psychotherapist, and/or psychiatrist from January 1, 1998 

through the present.

(Footnote Continued Next Page)
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subpoenas on Springfield Psychological and one of its providers, Appellees 

sought “any and all counseling records pertaining to Dominic Zirilli AND 

Karen Tavella-Zirilli.” Plaintiffs’ Objection to Subpoena, 6/12/19, at Exh. A 

(Defendants’ Non-Party Subpoenas) (capitalization in original; emphasis 

added). The trial court’s order directed the Zirillis to “provide un-redacted 

copies of all Springfield Psychological Records to Special Master Judge 

Manfredi for an in camera review to make a privilege determination.” Order, 

8/8/19 (emphasis added).

Records of the opinions, observations, diagnoses, or treatment 

alternatives of Ms. Tavella-Zirilli’s treatment provider(s) at Springfield 

Psychological that do not report Ms. Tavella-Zirilli’s communications are not 

protected by the psychiatrist/psychologist-patient privilege. See Farrell, 150 

A.3d at 97-98. 

The August 8, 2019, order, however, was not limited to these types of 

documents. Rather, it directed that all records be provided. In doing so, it 

effectively ordered disclosure of records containing communications made by

Ms. Tavella-Zirilli in the course of her treatment at Springfield Psychological, 

despite such records falling squarely within the parameters of the 

psychiatrist/psychologist-patient privilege. Because Ms. Tavella-Zirilli 

communicated her private thoughts to her therapist for the purpose of 

First Set of Requests for Production to Plaintiffs, 9/17/18 at ¶ 22; see also 

id. at ¶ 23 (requesting “Any and all documents of any nature whatsoever 

referred to in [the Zirillis]’ Answers to Interrogatories”).
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treatment, section 5944 protects records reflecting her thoughts from 

disclosure, including in camera review. Id. 

Therefore, while the trial court did not err in ordering the production of 

some of the documents, it abused its discretion by compelling the Zirillis to 

produce the records in their entirety. 

Waiver

Having concluded that records of communications made by Ms. TavellaZirilli in the course of her treatment at Springfield Psychological are privileged 

under section 5944, we now examine whether she has waived that privilege.

“As a general matter, once it is established that records are privileged 

from disclosure to third parties, the burden shifts to the party seeking 

disclosure to establish that an exception to the privilege exists which would 

allow the disclosure.” Segarra, 228 A.3d at 955, quoting In re Fortieth 

Statewide Investigating Grand Jury, 220 A.3d 558, 568 (Pa. 2019). Thus, 

the burden rests with Appellees to demonstrate that Ms. Tavella-Zirilli waived 

the privilege conferred by statute. See id.

The parties do not dispute that Ms. Tavella-Zirilli has not explicitly 

waived her statutory privilege under section 5944. Rather, relying on 

Octave ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014), Appellees 

argue that the Zirillis implicitly waived statutory privilege because they “put 

[Ms.] Tavella-Zirilli’s mental and physical health at issue (as to both causation 

and damages) by filing a personal injury action claiming that her skin condition 
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was caused by the hair color service.” Appellees’ Brief at 24. Appellees 

maintain that evidence of Tavella-Zirilli’s mental health diagnoses and related 

skin conditions “are directly relevant to the nature and source of the skin 

lesions the Zirillis attribute to [Appellees], with the potential to demonstrate 

definitively that the salon service on December 16, 2016, was by no means a 

substantial factor in causing the harm the Zirillis allege” and “is not readily or 

reliably available through the less intrusive means already attempted.” Id. at 

28.

On the other hand, the Zirillis argue that they have not implicitly waived 

statutory privilege by initiating this negligence action or seeking damages for 

pain and suffering. Appellants’ Brief at 22-25. The Zirillis contend Octave is 

distinguishable because our Supreme Court “etche[d] out only a very narrow 

exception” due to its unique facts, clearly urged caution in accepting implied 

waiver, and recognized that confidentiality was of paramount importance. Id.

at 20-21. They maintain that there are less intrusive means available to 

obtain the same information, i.e., deposition and independent psychological 

examination of Ms. Tavella-Zirilli. Id. at 22.

The trial court concluded that the Zirillis implicitly waived their privilege

under both the MHPA and the psychiatrist/psychologist-patient privilege. Trial 

Court Opinion, 4/16/21, at 5-9. The trial court explained as follows: 

[The Zirillis] should have reasonably known by filing this lawsuit 

alleging injuries to Ms. Tavella-Zirilli’s scalp that [any condition 

that is affects it] would come to light. It was reasonable for [the 

Zirillis] to foresee that Appellees would seek all relevant mental 
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health records relating to Ms. Tavella-Zirilli’s [treatment affecting 

her skin, scalp, or hair] to help form their defense. As such, [the 

Zirillis] have waived the privileges over their mental health 

records afforded by the MHPA and psychiatrist/psychologistpatient privilege pursuant to Octave and Gormley. [The Zirillis] 

will ultimately be provided the added protections of in-camera

review before any mental health treatment records are ultimately 

provided to Appellees; the intrusion on [the Zirillis]’ privacy here 

will thus be minimal. Accordingly, Judge Younge’s August 8, 

2019, Order properly ordered in-camera review of [Appellants]’ 

mental health records related to Ms. Tavella-Zirilli’s treatment

[affecting the skin].

Trial Court Opinion, 4/16/21, at 9 (citations omitted). 

Our Supreme Court’s decision in Octave did not address the 

psychiatrist/psychologist-patient privilege, but rather the statutory privilege 

set forth in the MHPA. The Octave Court “recognized a limited exception for 

finding implicit waiver under circumstances where the defendant was seeking 

mental health information about a deceased plaintiff that was unavailable 

through other means.” C.L. v. M.P., 255 A.3d 514, 523 (Pa. Super. 2021). 

As this Court recently explained:

In Octave, our Supreme Court addressed the disclosure of 

confidential mental health records in the context of a personal 

injury matter. Octave, 103 A.3d at 1256-57. In that case, the 

husband sustained injuries after he was struck by a tractor-trailer. 

After the incident, the state police issued a report concluding that 

the husband had attempted to commit suicide. Thereafter, the 

wife filed a personal injury lawsuit seeking money damages on 

behalf of herself and her incapacitated husband. The defendants 

argued that the husband intentionally caused his own injuries by 

attempting suicide. To defend the case against them, the 

defendants requested access to the husband’s mental health 

records. The plaintiffs asserted the husband’s privilege under the 

MHPA.
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In addressing plaintiffs’ claim of privilege, our Supreme 

Court cited with approval the following statement made by this 

Court in Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998):

We cannot believe that the Pennsylvania General 

Assembly intended to allow a plaintiff to file a lawsuit 

and then deny a defendant relevant evidence, at 

plaintiff’s ready disposal, which mitigates defendant’s 

liability. Rather[,] the General Assembly must have 

intended the privileges to yield before the state’s 

compelling interest in seeing that truth is ascertained 

in legal proceedings and fairness in the adversary 

process.

Octave, 103 A.3d at 1260 (citations omitted). After discussing 

similar decisions in other jurisdictions, the High Court held that “a 

patient waives his confidentiality protections under the MHPA 

where, judged by an objective standard, he knew or should have 

known his mental health would be placed directly at issue by filing 

the lawsuit.[”] Id. at 1262 (footnote omitted).

The Octave Court further concluded that there existed no 

“less intrusive means” to obtain the same type of information as 

contained in the husband’s mental health records. The Court 

explained that because the husband ultimately died from his 

injuries, it was not possible to obtain information about his mental 

health through less intrusive alternatives, such as interrogatories 

and independent psychological evaluations. Octave, 103 A.3d at

1263 n.10.

C.L., 255 A.3d at 521 (footnote omitted). 

In Gormley, this Court analyzed waiver of the 

psychiatrist/psychologist-patient privilege in section 5944, holding that the 

plaintiff waived that privilege in a personal injury action where she “directly 

placed her mental condition at issue when she alleged that she suffered from 

anxiety as a result of [a motor vehicle] accident.” 995 A.2d at 1206. Stating

the psychiatrist/psychologist-privilege “may be waived in civil actions where 
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the client places the confidential information at issue in the case,” this Court

explained that “[i]t would clearly be unfair for a party to seek recovery for 

anxiety if that mental health issue predated the accident. Moreover, where a 

party seeks recovery for aggravation of a pre-existing mental health condition, 

records of prior treatment for that condition are discoverable.” Gormley, 995 

A.2d at 1204, 1206 (citation, quotation marks, and footnote omitted).

Here, as analyzed supra, the trial court erred in concluding the MHPA 

was applicable and that the Zirillis implicitly waived privilege under that 

statute. Accordingly, we find the parties’ and trial court’s reliance on Octave

inapposite because it turned on section 7111 of the MHPA, which is 

inapplicable herein. Accord Gormley, 995 A.2d 1197 (rejecting plaintiff’s 

privacy argument rooted in the MHPA where the confidentiality provision in

section 7111 of the MHPA was inapplicable to plaintiff).

With respect to the psychiatrist/psychologist-patient privilege, we first 

point out, and as the trial court correctly noted, general averments of shock, 

mental anguish, and humiliation do not place a party’s mental condition at 

issue or result in a waiver of the psychiatrist/psychologist-patient privilege. 

Gormley, 995 A.2d at 1205; Trial Court Opinion, 4/16/21, at 6. Therefore, 

Ms. Tavella-Zirilli’s general averments in the amended complaint of “loss of 

life’s pleasures; mental anguish; embarrassment and emotional distress” do 

not result in a waiver of the privilege. Amended Complaint at ¶ 22.
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We next examine whether the Zirillis directly placed Ms. Tavella-Zirilli’s 

mental condition at issue in this case. The amended complaint does not raise 

allegations of mental injuries as a result of Ms. Tavella-Zirilli’s salon hair color 

treatment. Rather, Appellees’ defense to liability is that Ms. Tavella-Zirilli’s 

injuries pre-date her receipt of the salon hair color treatment and were caused 

in whole or in part by a mental health condition affecting her skin, scalp, or 

hair. 

Thus, the Zirillis knew or should have known that by commencing suit 

and alleging Ms. Tavella-Zirilli’s injuries were caused by Appellees’ negligence

in coloring and treating her hair, they were placing any condition that affects 

the skin, scalp, or hair at issue as to causation. 

Nonetheless, although evidence of a condition affecting the skin, scalp, 

or hair is relevant to liability, it does not vitiate Ms. Tavella-Zirilli’s expectation 

of confidentiality in her mental health records. See C.L., 255 A.3d 514, 523 

(citing M.M. v. L.M., 55 A.3d 1167, 1174 (Pa. Super. 2012)). It is not Ms. 

Tavella-Zirilli’s mental health that is at issue; rather, it is any condition, 

physical or mental, that could have caused or affected injuries to Ms. TavellaZirilli’s skin, scalp, or hair. 

The Zirillis did not consent to disclosure of Ms. Tavella-Zirilli’s mental 

health records, and they consistently objected to both disclosure and the 

subpoena. Appellees have shown a need for records of diagnoses, treatment, 

and observations involving an interplay between Ms. Tavella-Zirilli’s skin, 
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scalp, and hair and her mental health, but they have not shown a need for 

records of Ms. Tavella-Zirilli’s privileged communications about that interplay

and Ms. Tavella-Zirilli has not put those communications at issue by bringing 

this action. 

In other words, what is relevant are records showing a treatment 

provider believes Ms. Tavella-Zirilli has skin, scalp, or hair injuries caused by 

her mental health and when those injuries occurred, not Ms. Tavella-Zirilli’s

innermost thoughts about her mental health, regardless of whether those 

communications are about her skin, scalp, or hair. Thus, Ms. Tavella-Zirilli 

has not waived the psychiatrist/psychologist-patient privilege by commencing 

this suit.

Based on the foregoing, we conclude that because the breadth of the 

August 8, 2019, order requires production of some records that are protected 

by the psychiatrist/psychologist-patient privilege and there was no consent to 

release of the records or waiver of the privilege, the trial court erred in 

compelling production of unredacted copies of all Springfield Psychological 

records for in camera review, and in failing to limit the scope of the order. 

M.M., 55 A.3d at 1174 (reversing trial court order for production of records 

because production was not limited to opinions, observations, and diagnoses); 

Commonwealth v. Simmons, 719 A.2d 336, 343-44 (Pa. Super. 1998)

(holding trial court erred in requiring mental health provider to turn over its 

complete patient file to trial court for in camera privilege determination, and 
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vacating trial court order for production of complete file because some

documents in file were subject to psychiatrist/psychologist-patient privilege).

Moreover, we also note that while the trial court’s order attempted to 

provide some protection with in camera review, it failed to impose adequate 

safeguards to prevent disclosure outside of litigation, such as a protective 

order or confidentiality agreement restricting Appellees, their attorneys, and 

any other person receiving the records or information from the records, from 

disclosing the records or information outside this litigation. Without such a 

restriction on the use of the mental health records and information obtained 

by the order, protection of the Zirillis’ expectation of confidentiality is 

inadequate. 

In sum, because the order included records protected by the 

psychiatrist/psychologist-patient privilege and no protective order limiting the 

use of the records was entered, we reverse the trial court’s August 8, 2019,

order granting Appellees’ motion to strike the Zirillis’ privilege objections and 

compelling the Zirillis to provide unredacted copies of all Springfield 

Psychological records for in camera review. 

We remand this case with instructions that the trial court grant a 

protective order for the Zirillis to provide only the records of Ms. TavellaZirilli’s mental health treatment at Springfield Psychological which concern 

diagnosis, treatment, or observation of a mental health condition affecting the 

skin, scalp, or hair, with any communications by Ms. Tavella-Zirilli redacted
J-S29033-21

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and that restricts the disclosure of such records and any information obtained 

from them outside this personal injury action.

Order reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/08/2021