J-A29024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

M.W.M. 

Appellant

v.

JOSEPH A. BUZOGANY, M.D., 

ARMSTRONG-INDIANA BEHAVIORAL 

AND DEVELOPMENTAL HEALTH 

PROGRAM, INDIANA REGIONAL 

MEDICAL CENTER, BARBARA A. 

MCKEE AS THE ADMINISTRATOR OF 

THE ESTATE OF DONALD L. MCKEE, 

ESQUIRE, THE COUNTY OF INDIANA, 

PA, AMY CLINE, LOUISE KELLER 

BIVENS, MSW, AND SALLY PRUGH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 379 WDA 2022

Appeal from the Order Entered March 10, 2022

In the Court of Common Pleas of Indiana County Civil Division at No(s): 

12227 CD 2018

M.W.M. 

Appellant

v.

JOSEPH A. BUZOGANY, M.D., 

ARMSTRONG-INDIANA BEHAVIORAL 

AND DEVELOPMENTAL HEALTH 

PROGRAM, INDIANA REGIONAL 

MEDICAL CENTER, BARBARA A. 

MCKEE AS THE ADMINISTRATOR OF 

THE ESTATE OF DONALD L. MCKEE, 

ESQUIRE, THE COUNTY OF INDIANA, 

PA, AMY CLINE, LOUISE KELLER 

BIVENS, MSW, AND SALLY PRUGH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 380 WDA 2022

Appeal from the Order Entered March 10, 2022

In the Court of Common Pleas of Indiana County Civil Division at No(s): 

12227 CD 2018
J-A29024-22

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BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.

DISSENTING MEMORANDUM BY KUNSELMAN, J.: FILED: July 21, 2023

I respectfully dissent from the Majority both on the appellate-jurisdiction 

issue and on the merits. 

First, this appeal falls under the jurisdiction of the Commonwealth Court

of Pennsylvania. My learned colleagues in the Majority acknowledge that any

appeal from a final order in this case properly lies in the Commonwealth Court, 

because (1) Indiana County is a party and (2) “appeals from final orders of 

the court of common pleas involving statutes regulating the affairs or general

operations of counties or potential immunity defenses available to counties

fall within the exclusive jurisdiction of the Commonwealth Court.” Majority at 

12, n.11 (emphasis in original) (citing 42 Pa.C.S.A. § 762(a)(4)(i)(A) and (7); 

42 Pa.C.S.A. §§ 8541-8564; 42 Pa.C.S.A. § 8501; 42 Pa.C.S.A. § 102; and 

Wheatcroft v. Auritt, 312 A.2d 441 (Pa. Super. 1973)). I agree.

However, the Majority decides not to transfer this appeal to that court, 

in part, because M.W.M. did not appeal from a final order. See Majority at 

11-15, n.11. This is erroneous on several grounds.

To begin, the Majority disregards the Pennsylvania Rule of Appellate 701 

Under that Rule, “an appeal authorized by law from an interlocutory order 

shall be taken to, and petitions for permission to appeal from an interlocutory 

order and petitions for specialized review shall be filed in, the appellate court 

having jurisdiction of final orders in such matters.” Pa.R.A.P. 701 (emphasis 

added). This mandatory rule makes clear that interlocutory orders must be 
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appealed to the same appellate court that would have jurisdiction over an

appeal from the final order in a given case. Thus, M.W.M. violated Pa.R.A.P. 

701 by appealing to this Court, rather than the Commonwealth Court.

Moreover, the Majority’s reliance upon the words “final order” in Section 

762(a) is dubious, when considered in light of the other statutory sections on 

appellate jurisdiction. The other sections all use the same “final order” order 

language as 42 Pa.C.S.A. § 762(a) (concerning appellate jurisdiction of the 

Commonwealth Court). See 42 Pa.C.S.A. §§ 722, 723, and 724 (stating only 

“final orders” when vesting direct and discretionary appellate jurisdiction in 

the Supreme Court of Pennsylvania); See also 42 Pa.C.S.A. § 742 (stating 

only “final orders” when vesting direct appellate jurisdiction in this Court). 

Hence, taking the Majority’s interpretation of Section 762 to its logical end, no 

appellate court in Pennsylvania would ever have jurisdiction over an appeal 

from an interlocutory order, because none of the jurisdiction-positing statutes

include “interlocutory orders” in their language. See id.

Fortunately, the General Assembly, in establishing the division of labor 

for our appellate courts, recognized that parties take interlocutory appeals. 

Where, as here, a party appeals “from an interlocutory order [the appeal] shall 

be taken to the appellate court having jurisdiction of final orders in such 

matter.” 42 Pa.C.S.A. § 702(a). Thus, the fact that M.W.M. appealed from 

an interlocutory order does not strip the Commonwealth Court of jurisdiction. 

The Majority’s makes no mention of Section 702(a). This is error, 

because “statutes in pari materia shall be construed together, if possible, as 
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one statute.” 1 Pa.S.C.A. § 1932(b). “Statutes . . . are in pari materia when 

they relate to the same persons or things or to the same class of persons or 

things.” 1 Pa.C.S.A. § 1932(a). 

The sections of Chapter 7 of the Judicial Code deal with the same thing 

– namely, “Jurisdiciton of Appellate Courts.” Therefore, this Court should 

construe the sections of that chapter “together . . . as one statute.” 1 

Pa.S.C.A. § 1932(b). Reading the sections of Chapter 7 in pari materia reveal 

that the legislature intended the appellate-jurisdiction statutes to include the 

words “interlocutory order” wherever the words “final orders” appear. 42 

Pa.C.S.A. § 702(a). In short, the legislature intended the Commonwealth 

Court to have appellate jurisdiction over this collateral-order appeal, because 

it likewise has appellate jurisdiction over any final order in this case. See 42 

Pa.C.S.A. § 762(a).

Still, I recognize that, notwithstanding Pa.R.A.P. 701 and Section 702 of 

the Judicial Code, the legislature granted discretion to appellate courts to 

decide a case that has been wrongly appealed to them when neither party has 

objected. See Trumbull Corp. v. Boss Constr., Inc., 747 A.2d 395, 398-

399 (Pa. Super. 2000); see also 42 Pa.C.S.A. § 704(a) (stating, “[t]he failure 

of an appellee to file an objection to the jurisdiction of an appellate court within 

such time as may be specified by general rule, shall, unless the appellate court 

otherwise orders, operate to perfect the appellate jurisdiction of such appellate 

court, notwithstanding any provision of this title, or of any general rule 

adopted pursuant to section 503 (relating to reassignment of matters), 
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vesting jurisdiction of such appeal in another appellate court”). In this regard, 

we have explained:

When the legislature established the separate 

jurisdictions of the Supreme Court, the Commonwealth 

Court, and the Superior Court, it recognized that two distinct 

problems could arise. First, if a party inadvertently or 

unwittingly appealed to the wrong court, his appeal time 

might run before the error was discovered, and he might 

lose his right of appeal. Second, the legislature sought to 

protect appellate court decisions from collateral attack in 

those cases where neither party objected to jurisdiction. To 

avoid these two pitfalls, the legislature provided a flexible 

and efficient means of transferring cases from the court to 

which the appeal was taken to the court to which the 

legislature allocated subject matter jurisdiction. At the 

same time, it reserved to the court to which the appeal was 

erroneously taken the discretionary power to hear and 

decide the merits of the appeal when no jurisdictional 

objection is raised. 

Valley Forge Indus., Inc. v. Armand Const., Inc., 374 A.2d 1312, 1316 

(Pa. Super. 1977) (citations omitted).

As the Majority notes, in determining whether to exercise discretion to 

keep this appeal, we must balance the interests of the parties and matters of 

judicial economy against other factors such as: (1) whether the case has 

already been transferred; (2) whether our retention will disrupt the 

legislatively ordained division of labor between the intermediate appellate 

courts; and (3) whether there is a possibility of establishing two conflicting 

lines of authority on a particular subject. Trumbull, 747 A.2d at 399.

More recently, this Court, sitting en banc, unanimously held: “If any 

potential substantive issue (or participation of a particular party) invokes the 
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Commonwealth Court’s jurisdiction, transfer is appropriate, and we must 

transfer prior to reaching the merits of the appeal.” Mohn v. Bucks Cnty. 

Republican Comm., 218 A.3d 927, 934 (Pa. Super. 2019) (en banc)

(emphasis partially added and partially in original). “Otherwise, we invade 

the Commonwealth Court's exclusive jurisdiction to decide those substantive 

issues and to develop its own, consistent line of precedents.” Id. Today, a 

panel of this Court ignores this en banc holding. 

The Majority concludes that the interests of judicial economy, as well as 

the interests of the parties, are best served by this Court retaining jurisdiction 

of this appeal. I disagree. I believe our disposition could disrupt the division 

of labor between this Court and the Commonwealth Court, and it may result 

in conflicting lines of authority. See Trumbull, 747 A.2d at 399. The issues

to be resolved in this interlocutory appeal involve substantive matters

enumerated in Section 762. 

The relevant part of Section 762 of the Judicial Code provides:

(a) General Rule. —Except as provided in subsection (b), 

the Commonwealth Court shall have exclusive 

jurisdiction of appeals from final orders of the courts of 

common pleas in the following cases:

* * * 

(4) Local government civil and criminal matters.

(i) All actions or proceedings . . . where is drawn in 

question the application, interpretation or 

enforcement of any:

(A) statute regulating the affairs of political 

subdivisions, municipality and other local 
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authorities or other public corporations or of the 

officers, employees or agents thereof acting in 

their official capacity.

42 Pa.C.S.A. § 762(a)(4)(i)(A). (Emphasis added.)

The crux of this lawsuit involves whether Indiana County, through the 

actions of its employees in the public defender’s office, can be held civilly liable 

for violating statutes set forth in the mental health treatment programs and 

facilities act. See 50 P.S. §§ 4301-4305 and 16 P.S. §§ 9960.1-9960.13. The 

collateral issue raised on this appeal is whether the plaintiff’s mental health 

records from the last several years are discoverable in the lawsuit against the 

hospital and the county. 

By deciding this issue, we weigh in on matters that could affect the civil 

liability of Indiana County. This is an area that the legislature specifically and 

exclusively reserved to the Commonwealth Court under 42 Pa.C.S.A. § 762(a). 

And, because we could decide this discovery issue differently than the 

Commonwealth Court might, we risk creating divergent lines of authority. 

Therefore, under the binding precedent of this Court, “we must transfer” the 

instant matter to Commonwealth Court. Mohn, 218 A.3d at 934.

I appreciate that the parties and this Court have spent significant time 

on this appeal already. Judicial economy will always be affected if we decide 

to transfer a case that has been wrongly appealed to our Court. But, on 

balance, for the reasons noted above, I believe we should transfer this appeal 

to the Commonwealth Court. 
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That said, because my colleagues have asserted jurisdiction based on

the appellees’ failure to seek a transfer to the Commonwealth Court, I also 

dissent on the merits. 

The Majority correctly sets forth the law on the confidentiality of mental 

health records, so I need not restate it here. See Majority at 17-22. Indeed, 

the Majority acknowledges that courts must use great caution in finding that 

a plaintiff impliedly waived the confidentiality of these records when bringing

a personal injury lawsuit. Id. at 22 (citing Octave v. Walker, 103 A.3d 1255, 

1262 n.8, 1263 (Pa. 2014)) (“[a]llowing a defendant to initiate a fishing 

expedition into a plaintiff’s mental health records to explore whether any 

information may be potentially relevant or contradictory to the subject of the 

action would destroy the purpose of the “confidentiality protections”). Yet, 

the Majority ultimately concludes that M.W.M. impliedly waived the 

confidentiality privileges afforded to him pursuant to the MHPA and the DAA. 

I disagree. 

M.W.M.’s lawsuit is narrowly focused on the defendants’ actions during 

a specific time period. He concedes that his mental health records for the 30 

days preceding his commitment on December 20, 2016, are relevant to this 

case. See M.W.M.’s Brief at 10, 27. As such, M.W.M.’s appeal is limited to a 

challenge of the production of medical, mental health, and substance abuse 

treatment records generated prior to the 30-day period leading up to 

December 20, 2016.
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The basis for all of M.W.M.’s claims is that, after arriving at the hospital

and during the commitment process, he was denied the use of a telephone, 

denied his right to contact private counsel, denied the right to communicate 

with individuals outside of the hospital, denied adequate notice of his 303 

hearing, and denied adequate assistance of counsel. See M.W.M.’s Third 

Amended Complaint at 4-15, 17, 35. 

The trial court acknowledged that all of his claims are for events that

occurred after he arrived at the hospital:

[M.W.M.] specifically argues that [the doctor] held [him]

against his will without a timely medical examination, 

extended [M.W.M.’s] commitment under 50 P.S. § 7303 

without proper cause, failed to advise [M.W.M.] of his rights, 

provided inadequate notice and denied a continuance of the 

303 hearing to advance [the doctor’s] own interests, 

restricted [M.W.M.’s] phone access and his ability to contact 

counsel of his choice, and breached the professional duties 

owed to [M.W.M.] under the MHPA.

Trial Court Order, 3/10/22, at 2.

As M.W.M. argues, the trial court ignored that the MHPA states that only 

information within 30 days is relevant and the records the defendants were 

seeking from beyond that time frame could not be used for the purpose for 

which the trial court ordered their disclosure. In other words, even if M.W.M.

suffered from mental illness in the prior three to five years, any records from 

more than 30 days prior are beyond the scope of review. Such records are

irrelevant as to whether he met the statutory requirements for involuntary 

commitment on December 20, 2016. Moreover, M.W.M. correctly states:
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The [trial] court’s holding creates a shockingly broad new

precedent whereby any person who files a claim contending 

that his or her rights were violated when subjected to 

involuntarily commitment has necessarily and impliedly 

authorized the release of years of mental, medical, and 

substance abuse treatment records. This Court should not 

permit such a dangerous precedent. 

M.W.M.’s Brief at 23.

To obtain both a 302 and/or a 303 commitment, the facility must 

determine that a patient is “severely mentally disabled.” 50 P.S. § 7302(b) 

and 7303(c)(1). In order to be adjudged as “severely mentally disabled,” a 

patient must have been “a clear and present danger of harm to others or to 

himself” which “shall be shown by establishing that within the past 30 days

the person has inflicted or attempted to inflict serious bodily harm on another 

and that there is a reasonable probability that such conduct will be repeated.”

50 P.S. § 730 1 (b)(1)(emphasis added).

1 Thus, by statute, only events within 

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1 The full text of the statute provides: 

(b) Determination of Clear and Present Danger. --(1) 

Clear and present danger to others shall be shown by 

establishing that within the past 30 days the person has 

inflicted or attempted to inflict serious bodily harm on 

another and that there is a reasonable probability that such 

conduct will be repeated. If, however, the person has been 

found incompetent to be tried or has been acquitted by 

reason of lack of criminal responsibility on charges arising 

from conduct involving infliction of or attempt to inflict 

substantial bodily harm on another, such 30-day limitation 

shall not apply so long as an application for examination and 

treatment is filed within 30 days after the date of such 

determination or verdict. In such case, a clear and present 

danger to others may be shown by establishing that the 

(Footnote Continued Next Page)
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____________________________________________

conduct charged in the criminal proceeding did occur, and 

that there is a reasonable probability that such conduct will 

be repeated. For the purpose of this section, a clear and 

present danger of harm to others may be demonstrated by 

proof that the person has made threats of harm and has 

committed acts in furtherance of the threat to commit harm.

(2) Clear and present danger to himself shall be shown by 

establishing that within the past 30 days:

(i) the person has acted in such manner as to 

evidence that he would be unable, without care, 

supervision and the continued assistance of others, 

to satisfy his need for nourishment, personal or 

medical care, shelter, or self-protection and safety, 

and that there is a reasonable probability that death, 

serious bodily injury or serious physical debilitation 

would ensue within 30 days unless adequate 

treatment were afforded under this act; or

(ii) the person has attempted suicide and that there 

is the reasonable probability of suicide unless 

adequate treatment is afforded under this act. For the 

purposes of this subsection, a clear and present 

danger may be demonstrated by the proof that the 

person has made threats to commit suicide and has 

committed acts which are in furtherance of the threat 

to commit suicide; or

(iii) the person has substantially mutilated himself or 

attempted to mutilate himself substantially and that 

there is the reasonable probability of mutilation 

unless adequate treatment is afforded under this act. 

For the purposes of this subsection, a clear and 

present danger shall be established by proof that the 

person has made threats to commit mutilation and 

has committed acts which are in furtherance of the 

threat to commit mutilation.

50 Pa.C.S.A. § 7301 (emphasis added).
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the most recent 30 days could have been considered when determining 

whether M.W.M. was properly committed. Appellees cannot justify their 

actions with information that they were either aware or unaware of from 

beyond that time period. 

In short, the information Appellees seek to discover is not relevant and 

is unlikely to lead to any other relevant evidence regarding their actions when 

they committed M.W.M. on December 20, 2016. As such, I would find that 

the trial court erred in compelling M.W.M. to disclose his prior mental health 

history for the past three to five years beyond the relevant 30-day window.

2

 

For these reasons, I dissent. 

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2 As a final note, because the Majority here believes the documents are 

discoverable, the only ruling I agree with in the Majority decision is that the 

trial court should impose limitations on the use of this information. See

Majority at 30-31.