[J-98-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

IN RE: PETITION FOR ENFORCEMENT 

OF SUBPOENAS ISSUED BY THE 

HEARING EXAMINER IN A 

PROCEEDING BEFORE THE BOARD 

OF MEDICINE

APPEAL OF: M.R.

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No. 35 EAP 2016

Appeal from the Order of the 

Commonwealth Court entered on 

September 1, 2016, at No. 373 M.D. 

2016, granting the Petition to Enforce 

Subpoenas.

ARGUED: December 5, 2018

OPINION

JUSTICE WECHT DECIDED: August 20, 2019

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 
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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.

1

 A hearing on the disciplinary proceeding was scheduled for June 

15, 2016.

 

1 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.”).
[J-98-2018] - 3

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),2the 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.

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 

 

2 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).
[J-98-2018] - 4

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.3 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.

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 

 

3 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, 314 A.2d 270, 272 (Pa. 1974).
[J-98-2018] - 5

Practice Act of 1985 (“MPA”),4 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.

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, 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).

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 

 

4 63 P.S. §§ 422.1-422.51a.
[J-98-2018] - 6

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., 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.

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.5 M.R. contends that Dr. DeMichele’s Petition cannot 

 

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 
[J-98-2018] - 7

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.

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., 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.

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 

 

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)).
[J-98-2018] - 8

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 
[J-98-2018] - 9

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), 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 1972.6 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).

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 

 

6 1 Pa.C.S. §§ 1501-1991.
[J-98-2018] - 10

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 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 
[J-98-2018] - 11

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?
[J-98-2018] - 12

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, 431 A.2d 953, 

956 (Pa. 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).
[J-98-2018] - 13

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 
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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).7

 

7 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 1 (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 
[J-98-2018] - 15

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.

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

 

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.