J-S07011-22

2022 PA Super 183

COMMONWEALTH OF PENNSYLVANIA

v.

MARC W. NUZZO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 726 WDA 2021

Appeal from the Order Dated May 20, 2021

In the Court of Common Pleas of McKean County Criminal Division at 

No(s): CP-42-CR-0000175-2019

BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*

OPINION BY OLSON, J.: FILED: OCTOBER 18, 2022

Appellant, Marc W. Nuzzo, appeals from the May 20, 2021 order denying 

his request to seal an amended petition seeking an order directing an 

evaluation of his competency to stand trial.1 In addition, the challenged order 

designated Appellant’s competency petition as a public document, subject to 

disclosure except for certain communications related to Appellant’s prior 

medical treatment and diagnosis.

2

 We vacate the May 20, 2021 order and 

remand this case for further proceedings in accordance with this opinion.

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* Retired Senior Judge assigned to the Superior Court.

1 Throughout this opinion, we shall refer to Appellant’s May 7, 2021 amended 

petition seeking an order directing an evaluation of his competency to stand 

trial as Appellant’s “competency petition.”

2 A photostatic copy of the May 20, 2021 order, as well as the memorandum 

opinion accompanying said order, were timestamped as filed with the trial 

court on May 20, 2021. An original of said order was also timestamped and 

docketed by the trial court on June 2, 2021. Appellant’s appeal properly lies 

from the order docketed on May 20, 2021. See Pa.R.A.P. 108 (stating, “the 
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The record demonstrates that on March 28, 2019, Appellant was 

charged with aggravated assault by vehicle (3 counts), homicide by vehicle 

(1 count), involuntary manslaughter (1 count), and recklessly endangering 

another person (6 counts).3 Appellant’s criminal charges stemmed from his

involvement in an automobile accident where it was alleged that, in an attempt 

to pass another vehicle, Appellant crossed the double yellow lines appearing 

on the roadway and struck a vehicle, traveling in the oncoming, opposite lane 

of travel and in which three victims were riding. See Affidavit of Probable 

Cause, 5/28/19, at 2. Two victims sustained serious bodily injuries, while a 

third victim ultimately died from injuries sustained in the collision. Id. at 1-2.

Pertinent to the instant appeal, during the course of the criminal 

proceedings, counsel for Appellant filed a motion on March 19, 2021, 

requesting the trial court continue a status conference on the ground Appellant 

had recently been hospitalized and was unable to participate in the 

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date of entry of an order by a court [] shall be the day the clerk of the court 

[] mails or delivers copies of the order to the parties, or if such delivery is not 

otherwise required by law, the day the clerk [] makes such copies public”).

3 75 Pa.C.S.A. §§ 3732.1(a) and 3732, as well as 18 Pa.C.S.A. §§ 2504(a) 

and 2705, respectively. Appellant was also charged with the following 

summary offenses: limitations on driving on left of roadway, driving on right 

side of roadway, meeting vehicle proceeding in opposite direction, limitations 

on overtaking on the left, driving on roadways laned for traffic, careless 

driving, and reckless driving. 75 Pa.C.S.A. §§ 3306(a)(1), 3301(a), 3302, 

3305, 3309(1), 3714(a), and 3736(a), respectively. A criminal information 

was filed against Appellant on June 4, 2019, which charged Appellant with the 

aforementioned crimes, as well as the additional summary offense of no 

passing zone, 75 Pa.C.S.A. § 3307(b).
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proceedings. On March 29, 2021, the trial court granted Appellant’s motion 

for a continuance and further stated,

The limited medical information provided to the [trial] court 

regarding [Appellant’s] hospitalization will be sealed and 

forwarded to the clerk of courts in [the Court of Common Pleas of] 

McKean County with the express condition that the sealed 

document is not public and is not to be accessed without an 

express order of the [trial] court. Parties having knowledge of the 

[content of the sealed documents shall not divulge that 

information] except to note that [Appellant] is hospitalized and 

unable to proceed at this time.

Trial Court Order, 3/29/21 (continuing the status conference to April 21, 

2021). 

On April 20, 2021, in anticipation of requesting another continuance of 

the scheduled status conference, Appellant’s counsel moved to file, under seal, 

a second motion for continuance and medical documentation in support 

thereof. Appellant’s Motion to File Motion to Continue Under Seal, 4/20/21 

(stating that, Appellant’s medical condition precluded him from participating 

in the scheduled status conference). The Commonwealth filed a response in 

opposition to Appellant’s request to seal the record concerning his filings. 

Within its submission, the Commonwealth asked the trial court to issue an 

order specifically designating what medical information was not to be 

disclosed. Commonwealth’s Motion to Oppose Sealing of Record, 4/20/21. 

That same day, the trial court granted Appellant’s motion to file a continuance 

motion under seal and ordered, inter alia, that the continuance motion and 
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the supporting medical documentation would not be open to public inspection. 

Trial Court Order, 4/20/21.

On April 21, 2021, the trial court entertained argument on Appellant’s 

motion for a continuance and the Commonwealth’s opposition to the same. 

Although the trial court order entered at the conclusion of that hearing was 

filed under seal, and its precise contents are unknown to this Court, the record 

reflects that the trial court directed Appellant to file a motion seeking a 

competency evaluation, if one were contemplated. Both Appellant and the 

Commonwealth were directed to file legal memoranda addressing the trial 

court’s authority to seal the record if Appellant subsequently filed a motion 

seeking a competency evaluation. See Commonwealth’s Memorandum of 

Law, 5/6/21, at 1; see also Appellant’s Memorandum of Law, 5/7/21.

On May 7, 2021, Appellant’s counsel filed a competency petition 

pursuant to Section 7402(c) of the Mental Health Procedures Act, 50 P.S. 

§§ 7101-7503.

4

 Counsel asserted that Appellant “was incompetent to stand 

trial or otherwise proceed with the case at this time[.]”5 Appellant also 

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4 Appellant filed his original petition for an order directing a competency 

evaluation on May 6, 2021. An amended competency petition followed the 

next day in order to correct a citation to the Mental Health Procedures Act.

5 Section 7402(a) of the Mental Health Procedures Act states that, 

“[w]henever a person who has been charged with a crime is found to be 

substantially unable to understand the nature or object of the proceedings 

against him or to participate and assist in his defense, he shall be deemed 

incompetent to be tried, convicted[,] or sentenced so long as such incapacity 

continues.” 50 P.S. § 7402(a).
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requested that the trial court seal his competency petition. See Trial Court 

Memorandum Opinion, 5/20/21, at 1 (stating, Appellant’s counsel “requests 

the [trial c]ourt seal [the competency petition] and presumably any results of 

the [hearing on the motion]”). On May 20, 2021, the trial court denied 

Appellant’s request to seal the competency petition, stating, “[t]he amended 

petition for [a competency evaluation] of [Appellant] will be filed as a public 

document, subject to [disclosure except for communications by the 

psychiatrists and licensed professional counselors who have evaluated 

Appellant].” Trial Court Order, 5/20/21.6

On June 21, 2021, Appellant appealed from the May 20, 2021 order “in 

so far as the second sentence thereof finds that a [competency petition] is a 

public record as well as the order at issue.” That same day, Appellant filed a 

request to amend the May 20, 2021 order, pursuant to Pa.R.A.P. 1311(b), to 

certify the interlocutory order as appealable by permission pursuant to 42 

Pa.C.S.A. § 702(b).7 On June 28, 2021, the trial court denied Appellant’s 

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6

In a June 4, 2021 order, the trial court ordered that Appellant undergo a 

psychological evaluation and reiterated that “the [competency petition] will be 

deemed to be [a] public document[.]” Trial Court Order, 6/4/21.

7 Section 702(b) of the Judicial Code states,

When a court or other government unit, in making an interlocutory 

order in a matter in which its final order would be within the 

jurisdiction of an appellate court, shall be of the opinion that such 

order involves a controlling question of law as to which there is 

substantial ground for difference of opinion and that an immediate 

appeal from the order may materially advance the ultimate 
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request to amend the interlocutory order, stating the trial “court believes this 

appeal to be totally frivolous and constitutes a further unnecessary delay in 

this very old criminal case which is replete with defense delays and 

unnecessary appeals.”8 Trial Court Order, 6/28/21. This appeal followed.

Appellant raises the following issues for our review:

[1.] Is an order denying a request to seal [a] petition for [an] 

order directing [a competency evaluation], filed pursuant to 

[]50 P.S. § 7402[], and all other documents related 

thereto[,] a collateral order under Pa.R.A.P. 313?

[2.] Does Section 7111 [] of the Mental Health Procedures Act [] 

require the [trial] court [to] seal the petition [seeking an] 

order directing [a competency evaluation], filed pursuant to 

[]50 P.S. § 7402[] in this case, and all other documents 

related thereto, such that the same remain confidential and 

not a public record?

Appellant’s Brief at 4.9

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termination of the matter, it shall so state in such order. The 

appellate court may thereupon, in its discretion, permit an appeal 

to be taken from such interlocutory order.

42 Pa.C.S.A. § 702(b). Rule 1311(b) permits a party to file an application to 

amend an interlocutory order “to set forth expressly [] the statement specified 

in 42 Pa.C.S.A. § 702(b)” within 30 days after the entry of such interlocutory 

order. Pa.R.A.P. 1311(b).

8 Appellant did not file a petition pursuant to Pa.R.A.P. 1311(a) with this Court 

requesting permission to appeal the May 20, 2021 order. Rule 1311(a) states, 

inter alia, that, “[a]n appeal may be taken by permission from an interlocutory 

order . . . for which certification pursuant to 42 Pa.C.S.A. § 702(b) was 

denied[.]” Pa.R.A.P. 1311(a)(1).

9 For purpose of disposition, Appellant’s issues have been renumbered.
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As Appellant recognizes by way of his first issue, we must first determine 

whether the May 20, 2021 interlocutory order is appealable because 

appealability implicates our jurisdiction. Calabretta v. Guidi Homes, Inc., 

241 A.3d 436, 440 (Pa. Super. 2020). Jurisdiction is purely a question of law,

and, as such, our standard of review is de novo, and our scope of review is 

plenary. Id. at 440-441.

Because jurisdictional grounds for this appeal were not immediately 

apparent, this Court, in an August 20, 2021 per curiam order, directed 

Appellant to show cause why the May 20, 2021 order satisfied the collateral 

order doctrine, as discussed more fully infra. Per Curiam Order, 8/20/21. 

Appellant filed a response to the rule to show cause order with this Court on 

August 31, 2021. In a September 29, 2021 per curiam order, this Court 

discharged its rule to show cause order and advised Appellant that the issue 

may be revisited by the merits panel. Per Curiam Order, 9/29/21.

Generally, a party may only appeal from a final order, which is defined 

by Pennsylvania Rule of Appellate Procedure 341 as an order that, inter alia, 

“disposes of all claims and of all parties[.]” Pa.R.A.P. 341(b)(1). One 

exception to this general rule, however, is commonly known as the collateral 

order doctrine and is set forth in Pennsylvania Rule of Appellate Procedure 

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The trial court did not order Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed 

its Rule 1925(a) opinion on August 30, 2021, stating that it was relying on its 

May 20, 2021 memorandum opinion, which accompanied the order that is the 

subject of the instant appeal.
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313. Pursuant to Rule 313, “an appeal may be taken as of right from a 

collateral order of a trial court[.]” Pa.R.A.P. 313(a). Rule 313(b) defines a 

collateral order as “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(b).

It is well-established that, consistent with the definition that appears in 

Rule 313, there are three elements that define a collateral 

order – separability, importance, and irreparable loss if review is postponed. 

A.A. v. Glicken, 237 A.3d 1165, 1169 (Pa. Super. 2020), citing Ben v. 

Schwartz, 729 A.2d 547 (Pa. 1999). “[A]n order is ‘separable’ from the main 

cause of action if it is capable of review without consideration of the main 

issue in the case.” Commonwealth v. Shearer, 882 A.2d 462, 468 (Pa. 

2005). When assessing “whether an issue is sufficiently important to support 

application of the collateral order doctrine, [an appellate] court should weigh 

the interests implicated in the case against the costs of piecemeal litigation.” 

Glicken, 237 A.3d at 1169 (citation, original brackets, and original quotation 

marks omitted). The “importance requirement is satisfied when the claim 

implicates rights deeply rooted in public policy going beyond the particular 

litigation at hand and does not merely affect the individuals involved in the 

case at hand.” Shearer, 882 A.2d at 469 (citation and original quotation 

marks omitted). “An issue is important if the interests that would potentially 

go unprotected without immediate appellate review are significant relative to 
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the efficiency interests sought to be advanced by adherence to the final 

[order] rule.” Glicken, 237 A.3d at 1169 (original brackets and original 

quotation marks omitted). Finally, irreparable loss results when “the claim 

raised will clearly be lost forever if appellate review is delayed until final 

judgment of the case.” Shearer, 882 A.2d at 469. With this three-prong test 

in mind, appellate courts construe the collateral order doctrine narrowly in 

order “to avoid undue corrosion of the final order rule and to prevent delay 

resulting from piecemeal review of trial court decisions.” Shearer v. Hafer, 

177 A.3d 850, 858 (Pa. 2018) (citation, original quotation marks, and ellipsis 

omitted).

There is little dispute that Appellant raises a claim that is separable from 

the main cause of action since the confidential status of the competency 

petition is capable of review without consideration of the main substantive 

issues in this criminal proceeding. More specifically, we may adjudicate 

Appellant’s privacy interest in his medical and mental health records without

a determination of his competency to stand trial or an adjudication of his 

criminal responsibility for the alleged offenses, which are inquiries critical to 

the pre-trial and trial phases of this case. As such, the instant appeal is 

separable from the merits of the underlying criminal prosecution, including 

the underlying issue of Appellant’s culpability. See Hafer, 177 A.3d at 858 

(stating that, “an order is separable from the main cause of action if it can be 

resolved without an analysis of the merits of the underlying dispute and if it 
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is entirely distinct from the underlying issue in the case” (citation and original 

quotation marks omitted)).

Turning to the importance requirement, we are asked in the case sub 

judice to balance Appellant’s right to privacy in his medical treatment and 

diagnosis records against the cost of piecemeal litigation and the interests 

served by the final order rule. Our Supreme Court recognizes that the 

“confidentiality of mental health records is the sine qua non of effective 

treatment.” Zane v. Friends Hosp., 836 A.2d 25, 33 (Pa. 2003). Pursuant 

to Section 7111 of the Mental Health Procedure Act, “[a]ll documents 

concerning persons in treatment shall be kept confidential and, without the 

person's written consent, may not be released or their contents disclosed to 

anyone except[, inter alia,] a court in the course of legal proceedings 

authorized by this act[.]” 50 P.S. § 7111(a)(3). Similar to the 

psychiatrist-psychologist/patient-client confidentiality privilege,10 the 

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10 The psychiatrist-psychologist/patient-client confidentiality privilege is 

codified in Section 5944 of the Judicial Code as follows:

No psychiatrist or person who has been licensed [] 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.
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restrictions placed on the disclosure of mental health treatment records is 

intended to foster and “aid in the effective treatment of the [patient] by 

encouraging the patient to disclose information fully and freely without fear of 

public disclosure.” Gormley v. Edgar, 995 A.2d 1197, 1204 (Pa. Super. 

2010) (stating that, “even the threat of disclosure of the contents of private 

mental health records can have a chilling effect on one's willingness to seek 

treatment”); see also Octave ex rel. Octave v. Walker, 103 A.3d 1255, 

1260 (Pa. 2014) (stating, the confidentiality protections afforded by Section 

7111 encourage “patients to offer information about themselves freely and 

without suffering from fear of disclosure of one's most intimate expressions to 

others and the mistrust that the possibility of disclosure would engender”). 

Given the prevalence of mental health disorders in today’s society,

11 proper 

assessment of the confidential status afforded to mental health treatment 

records is important for all individuals who are considering, seeking, or 

currently undergoing mental health treatment and those interests extend 

beyond the parties in this case. Therefore, Appellant’s claim asserting 

confidentiality in his request for an order directing a competency evaluation is 

important and deeply rooted in public policy. See In re “B”, 394 A.2d 419, 

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11 According to the Centers for Disease Control and Prevention, studies reveal,

“1 in 5 Americans will experience a mental health illness in a given year[,] 1 

in 5 children, either currently or at some point during their life, have had a 

seriously debilitating mental illness[, and] 1 in 25 Americans live with a serious 

mental health illness, such as schizophrenia, bipolar disorder, or major 

depression.” See https://www.cdc.gov/mentalhealth/learn/index.htm (last 

visited September 13, 2022) (references omitted).
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425 (Pa. 1978) (stating, “an individual's interest in preventing the disclosure 

of information revealed in the context of a [doctor]-patient relationship has 

deeper roots than the Pennsylvania doctor-patient privilege statute [in] that 

the patient's right to prevent disclosure of such information is constitutionally 

based”); see also T.M. v. Elwyn, Inc., 950 A.2d 1050, 1057-1058 

(Pa. Super. 2008) (stating that, orders involving potentially confidential and 

privileged materials, especially materials involving sensitive mental health 

information, implicate the “importance” prong of the collateral order doctrine 

“because the privacy rights involved are deeply rooted in public policy”), 

relying on, Schwartz, supra; see also Pasquini v. Fairmount Behavioral 

Health Sys., 230 A.3d 1190, 1194 (Pa. Super. 2020) (holding that, “the 

potential revelation of this sensitive mental health information implicates the 

‘importance’ prong of the collateral order doctrine”). As such, given the 

importance of the privilege interest concerning the protection of mental health 

records and information, the policy against piecemeal litigation must yield to 

permit immediate appellate review.

Finally, Appellant’s claim concerning the confidentiality of his 

competency petition and attached materials will be irreparably lost if appellate 

review is delayed until entry of a judgment of sentence. See Commonwealth 

v. Harris, 32 A.3d 243, 249 (Pa. 2011) (stating that, once “material is in the 

open, the bell has been rung, and cannot be unrung by a later appeal”). 

Therefore, we conclude that the May 20, 2021 order designating Appellant’s 
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competency petition as a public document is immediately appealable under 

Rule 313. We now turn to the merits of this appeal.

In his second issue, Appellant asserts the trial court erred in designating 

his competency petition as a public document. Appellant’s Brief at 8-21. 

Appellant argues that Section 7111 of the Mental Health Procedures Act 

required the trial court to seal his Section 7402 competency petition. Id.

Generally, we review a trial court’s decision to grant or deny closure of 

a record for an abuse of discretion. Glicken, 237 A.3d at 1170. When the 

claim raised on appeal involves statutory interpretation, however, we address 

the issue presented as a question of law for which our standard of review is

de novo and our scope of review is plenary. In re B.W., 250 A.3d 1163, 1170 

(Pa. 2021).

It is well-established that the Mental Health Procedures Act is to be 

strictly construed. Commonwealth v. Moyer, 595 A.2d 1177, 1179 

(Pa. Super. 1991), appeal denied, 604 A.2d 248 (Pa. 1992). In construing a 

statute, appellate courts must give effect to the legislature’s intent and give 

effect to all of the statute’s provisions. B.W., 250 A.3d at 1171 (emphasis 

added), citing 1 Pa.C.S.A. § 1921(b). As our Supreme Court has explained,

[t]he plain language of the statute is the best indication of the 

legislature's intent. To discern the plain meaning of a statute, 

[appellate courts] consider the operative statutory language in 

context and give words and phrases their common and approved 

usage. Courts must give effect to a clear and unambiguous 

statute and cannot disregard the statute's plain meaning to 

implement its objectives. Only if the statute is ambiguous, and 

not explicit, do we resort to other means of discerning legislative 

intent.
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B.W., 250 A.3d at 1171 (citations and quotation marks omitted).

Section 7111 of the Mental Health Procedures Act governs the 

confidentiality of mental health records as follows:

§ 7111. Confidentiality of records

(a) All documents concerning persons in treatment shall be kept 

confidential and, without the person's written consent, may not be 

released or their contents disclosed to anyone except:

(1) those engaged in providing treatment for the person;

(2) the county administrator, pursuant to [50 P.S. § 7110];

(3) a court in the course of legal proceedings authorized by this 

act; and

(4) pursuant to Federal rules, statutes and regulations governing 

disclosure of patient information where treatment is undertaken 

in a Federal agency.

In no event, however, shall privileged communications, whether 

written or oral, be disclosed to anyone without such written 

consent. This shall not restrict the collection and analysis of 

clinical or statistical data by the department, the county 

administrator[,] or the facility so long as the use and 

dissemination of such data does not identify individual patients. 

Nothing herein shall be construed to conflict with [71 P.S. 

§ 1690.108 (relating to confidentiality of records under the 

Pennsylvania Drug and Alcohol Abuse Control Act)].

(b) This section shall not restrict judges of the courts of common 

pleas, mental health review officers[,] and county mental health 

and mental retardation administrators from disclosing information 

to the Pennsylvania State Police or the Pennsylvania State Police 

from disclosing information to any person, in accordance with the 

provisions of 18 Pa.C.S.[A.] § 6105(c)(4) (relating to persons not 

to possess, use, manufacture, control, sell[,] or transfer firearms).

50 P.S. § 7111 (footnotes omitted). Our Supreme Court in Zane, supra, held 

that the terms of Section 7111 and its provisions regarding the confidentiality 
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of mental health records are unambiguous and leave “little room for doubt as 

to the intent of the Legislature[.]” Zane, 836 A.2d at 31. The Zane Court, 

in explaining the plain-meaning of Section 7111(a), stated,

[Section 7111(a)] applies to all documents regarding one's 

treatment, not just medical records. Furthermore, the verbiage 

that the documents “shall be kept confidential” is plainly not 

discretionary but mandatory in this context - it is a requirement.

The release of the documents is contingent upon the person's 

written consent and the documents may not be released “to 

anyone” without such consent. The terms of the provision are 

eminently clear and unmistakable and the core meaning of this 

confidentiality section of the Mental Health Procedures Act is 

without doubt - there shall be no disclosure of the treatment 

documents to anyone.

Zane, 836 A.2d at 32 (emphasis in original) (noting that, the Court’s 

“conclusion regarding the meaning and broad scope of [S]ection 7111 is amply 

supported by the virtually unanimous case law interpreting this provision”

(citations omitted)).

In examining one of the enumerated exceptions to the mandatory 

prohibition against disclosure under Section 7111(a), the Zane Court stated 

that Section 7111(a)(3) “permits disclosure to a court in the course of legal 

proceedings” but with limitations. Zane, 836 A.2d at 32. The Zane Court 

explained,

disclosure to a court is not permitted in any legal proceedings, but 

only in those legal proceedings authorized by the Mental 

Health Procedures Act. Our review of the Mental Health 

Procedures Act reveals certain legal proceedings that are 

authorized by the statute, that is, proceedings falling within the 

confines of the act. These include involuntary emergency 

treatment, 50 P.S. § 7303; court-ordered involuntary treatment, 

50 P.S. § 7304 and § 7305; transfer of persons in involuntary 
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treatment, 50 P.S. § 7306; and voluntary mental health 

commitment determinations, 50 P.S. § 7204 and § 7206.

Zane, 836 A.2d at 32 (emphasis added); see also Moyer, 595 A.2d at 1179 

(stating, “[t]he unambiguous language of [S]ection 7111[(a)](3) leads us to 

conclude that a patient's in[-]patient mental health treatment records may be 

used by a court only when the legal proceedings being conducted are within 

the framework of the [Mental Health Procedures Act]”).

Section 7402 of the Mental Health Procedures Act12 states that, 

“[w]henever a person who has been charged with a crime is found to be 

substantially unable to understand the nature or object of the proceedings 

against him or to participate and assist in his defense, he shall be deemed 

incompetent to be tried, convicted[,] or sentenced so long as such incapacity 

continues.”

13

 50 P.S. § 7402(a).

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12 When considering the proper scope of disclosure of mental health records 

in competency proceedings, we must read Section 7402 in tantum with our 

Supreme Court’s interpretation of the exception set forth in Section 

7111(a)(3). In Zane, our Supreme Court held that Section 7111(a)(3) 

permits disclosure of treatment records to a court only in those legal 

proceedings authorized by the Mental Health Procedures Act, but no further. 

See Zane, 836 A.2d at 32 (detailing a non-exhaustive list of legal proceedings 

authorized by the Mental Health Procedures Act). Following the approach of 

our Supreme Court in Zane, we are persuaded that Section 7402, which 

pertains to a legal proceeding authorized by the Mental Health Procedures Act, 

contemplates disclosure to a court but not the public. See B.W., 250 A.3d at 

1171 (requiring appellate courts to give effect to all of a statute’s provisions 

when construing a statute).

13 We note that there is a distinction between a person who is incompetent to 

stand trial and a person who is severely mentally disabled. See 50 P.S. 
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The court, either on application or on its own motion, may order 

an incompetency examination at any stage in the proceedings and 

may do so without a hearing unless the examination is objected 

to by the person charged with a crime or by his counsel. In such 

event, an examination shall be ordered only after determination 

upon a hearing that there is a prima facie question of 

incompetency. Upon completion of the examination, a 

determination of incompetency shall be made by the court where 

incompetency is established by a preponderance of the evidence.

50 P.S. § 7402(d). An application for a competency evaluation may be made 

by “an attorney for the Commonwealth, a person charged with a crime, his 

counsel, or the warden or other official in charge of the institution or place in 

which he is detained.” 50 P.S. § 7402(c).

When ordered by the court, an incompetency examination shall 

take place under the following conditions:

(1) It shall be conducted as an outpatient examination unless an 

inpatient examination is, or has been, authorized under another 

provision of this act.

(2) It shall be conducted by at least one psychiatrist or licensed 

psychologist and may relate both to competency to proceed and 

to criminal responsibility for the crime charged.

____________________________________________

§ 7402(b) (stating, “a court may order involuntary treatment of a person 

found incompetent to stand trial but who is not severely mentally disabled”); 

see also Commonwealth v. McQuaid, 347 A.2d 465, 470-471 (Pa. 1975) 

(stating, a person may be committable for incompetency to stand trial while 

at the same time not committable for reason of mental disability because a 

person “might easily lack ‘self-control, judgment[,] and discretion’ in the 

context of a criminal trial and yet be capable of caring for himself in his daily 

‘affairs and social relations’”); Commonwealth v. Knight, 419 A.2d 492, 496 

(Pa. Super. 1980) (explaining that, competency to stand trial relates to one’s 

mental state during criminal proceedings, while mental disability relates to 

one’s mental state at the time the crime was committed, the latter providing 

a defense).
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(3) The person shall be entitled to have counsel present with him 

and shall not be required to answer any questions or to perform 

tests unless he has moved for or agreed to the examination. 

Nothing said or done by such person during the examination may 

be used as evidence against him in any criminal proceedings on 

any issue other than that of his mental condition.

(4) A report shall be submitted to the court and to counsel and 

shall contain a description of the examination, which shall include:

(i) diagnosis of the person's mental condition;

(ii) an opinion as to his capacity to understand the nature and 

object of the criminal proceedings against him and to assist in his 

defense;

(iii) when so requested, an opinion as to his mental condition in 

relation to the standards for criminal responsibility as then 

provided by law if it appears that the facts concerning his mental 

condition may also be relevant to the question of legal 

responsibility; and

(iv) when so requested, an opinion as to whether he had the 

capacity to have a particular state of mind, where such state of 

mind is a required element of the criminal charge.

50 P.S. § 7402(e). “The determination of the competency of a person who is 

detained under a criminal charge shall be rendered by the court within 20 days 

after the receipt of the report of examination unless the hearing was continued 

at the person's request.” 50 P.S. § 7402(g).

Here, counsel for Appellant argues that, “[t]he plain language of 

[Section 7111] has no limitation on the types of documents that are 

confidential [but, rather,] only requires that [the documents] concern the 

person in treatment.” Appellant’s Brief at 20. Counsel contends that 

Appellant’s competency petition contains averments and materials related to 

Appellant’s mental health, some of which were sealed pursuant to prior trial 
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court orders. These averments and materials were included with the 

competency petition to establish a prima facie question of Appellant’s 

incompetency to stand trial. Id. at 10-13. Appellant asserts that his

competency petition, like his prior motions for continuance which were sealed 

by the trial court, falls within the “all documents” language of Section 7111. 

Because of this, Appellant concludes that the trial court erred in denying the 

request to seal the competency petition. Id. at 20-21.

In denying Appellant’s request, the trial court held that, “[n]othing bars 

the release of competency proceedings to the public, so long as the emphasis 

is on the diagnosis of a criminal defendant’s competency to stand trial.” Trial 

Court Opinion, 5/20/21, at 2. In so holding, the trial court explained that,

“[t]he law presumes that criminal trials are subject to a common law right of 

access,” including a right of “public access to judicial records.” Id. The trial 

court further explained that this presumption in favor of public access to 

judicial records in criminal trials “must be read in conjunction with the Mental 

Health Procedures Act, and its emphasis on the confidentiality of treatment 

records, as opposed to diagnostic records.” Id. Thus, the trial court found 

that the Mental Health Procedures Act required treatment records to be kept 

confidential but diagnostic records were not to be afforded the same 

protection. Id. at 2-3.

Appellant’s issue appears to be one of first impression as we have found 

no case law, and neither Appellant nor the Commonwealth cite to any case 

law, that addresses whether a petition seeking a competency evaluation is 
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encompassed within the “all documents” language of Section 7111(a). A 

plain-reading of Section 7111(a) leads us to conclude that such a petition is

governed by the confidentiality protections of Section 7111(a) when the 

petition contains factual averments and materials offered in support of the 

prima facie showing of incompetency and which refer, reflect, or relate, inter 

alia, to mental health treatment and diagnosis records, including, but not 

limited to, names of physicians and treatment facilities, hospitalizations, 

medical opinions or diagnosis (including medical records, letters, and charts), 

and current or recommended courses of treatment.

14

 See Zane, 836 A.2d at 

32 (reiterating, Section 7111(a) “applies to all documents regarding one’s 

treatment, not just medical records” (emphasis in original)). When an 

attorney for the Commonwealth, a defendant, a defendant’s counsel, or a 

warden or other official of the institution or place in which the defendant is 

detained calls into question the defendant’s competency to stand trial, the 

individual seeking the competency determination must file a petition with the 

trial court requesting an order for a competency evaluation.

15

 50 P.S. 

____________________________________________

14 “[P]rima facie evidence is such evidence as, in the judgment of the law, is 

sufficient to establish a given fact, or the group or chain of facts constituting 

the party's claim or defense, and which if not rebutted or contradicted, will 

remain sufficient.” In re L.Z., 111 A.3d 1164, 1185 (Pa. 2015) (citation, 

original quotation marks, and original brackets omitted).

15 The petition requirement does not apply if the trial court questions a

defendant’s competency to stand trial and orders a competency evaluation 

sua sponte. See 50 P.S. §§ 7402(d).
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§§ 7402(c) and (d). In such a petition, the individual must present averments

and material to support the prima facie question of incompetency sufficient to 

cause the trial court to order a competency evaluation.16 50 P.S. § 7402(d); 

see also 50 P.S. § 7403(a) (stating that, “the individual making an application 

to the [trial] court for an order directing an incompetency examination shall 

have the burden of establishing incompetency to proceed by a preponderance 

of the evidence”). It stands to reason that in order to establish the prima 

facie showing of incompetency, a petitioner must provide details concerning a

defendant’s current mental health status, including, inter alia, records of 

current treatment, diagnosis, and hospitalizations. These factual averments 

and supporting materials relate to “one’s treatment” as contemplated by 

Section 7111(a). A petitioner may choose, but is not required, to set forth 

those details in a petition seeking a competency evaluation.

17

 Therefore, a 

____________________________________________

16 At a minimum, evidence must be presented to support the prima facie 

showing of incompetency in order to, inter alia, maintain the integrity of such 

a proceeding and foreclose the possibility that competency proceedings 

become no more than a tactic used to delay prosecution.

17 Section 7402(c) sets forth only that an “application” must be made to the 

trial court requesting such an order. Section 7402 does not provide guidelines 

and requirements of the type of evidence that must be contained within a 

petition seeking a competency evaluation other than to require that the 

information establish a prima facie case for incompetency to stand trial. See

50 P.S. § 7402.

In practice, these types of applications are typically desensitized of detailed 

mental health information (such as, physician and facility names, records of 

mental health treatment and diagnosis, and physician opinions as to an 

individual’s mental health status or competency) and, rather, contain only 
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document, including a petition seeking a competency evaluation, or a motion 

for a continuance to file the same, that sets forth factual averments and 

incorporates information regarding a defendant’s mental health 

treatment and diagnosis, such as in the case sub judice, are encompassed 

within the confidentiality protections of Section 7111(a).18

Moreover, where a competency petition (or a motion for a continuance 

to file the same) details a defendant’s mental health treatment and diagnosis, 

such as in the case sub judice, the filing does not implicate the exception to

confidentiality protections as set forth in Section 7111(a)(3) to the extent that 

the record of such filings may be disclosed to anyone other than the trial 

____________________________________________

general assertions of why such a request has been made. Generally, if a 

petitioning-party, or the trial court, believes additional information concerning 

an individual’s mental health treatment and status is necessary to establish a 

prima facie case, the petitioning-party will seek, or the trial court may order, 

a closed-hearing, or in-camera review of such information so as to avoid the 

release of confidential information to the public. Such was not the case here. 

See Amended Petition for Order Directing an Incompetency Examination, 

5/7/21.

18 We do not embrace the trial court’s distinction between mental health 

treatment and mental health diagnosis. A petition that seeks a competency 

assessment requests such an evaluation because the petitioner believes that 

the diagnosis will show the defendant is incompetent to stand trial. To satisfy

the prima facie showing of incompetency, a petitioner must make assertions 

and present evidence of the defendant’s mental health status, treatment, and 

diagnosis, as then-known. Therefore, it is an insurmountable burden in many 

cases to segregate references to diagnosis from references to treatment.
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court.

19

 As we have explained supra, a competency petition is a legal 

proceeding referenced within the Mental Health Procedures Act. See 50 P.S. 

§ 7402(c) (stating, “[a]pplication to the [trial] court for an order directing an 

incompetency evaluation may be presented by an attorney for the 

Commonwealth, a person charged with a crime, his counsel, or the warden or 

other official in charge of the institution or place in which he is detained”). 

Pursuant to the confidentiality exception set forth in Section 7111(a)(3), 

disclosure of a defendant’s mental health treatment and diagnosis is only 

permitted, without the written consent of the party, to the trial court in the 

course of a legal proceeding authorized by the Mental Health 

Procedures Act. 50 P.S. § 7111(a)(3); see also Zane, 836 A.2d at 32 

(stating, disclosure to the trial court is permitted in legal proceedings 

authorized by the Mental Health Procedures Act). Conspicuously absent from 

the exception set forth in Section 7111(a)(3) is an extension of the exception 

that permits all documents relating to a person’s mental health treatment to 

be disclosed to the public vis-a-vis the judicial record without the written 

____________________________________________

19 We further find that the filing of a competency petition, as contemplated by 

the Mental Health Procedures Act, does not constitute an implicit waiver of the 

confidentiality protections afforded by Section 7111. See In re Fortieth 

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

(stating, “implicit waiver of this privilege is disfavored and has been 

recognized by our [Supreme] Court in only one circumstance — where a 

plaintiff initiated a civil action and sought to use Section 7111 to shield 

disclosure of mental health treatment records, which he could reasonably have 

foreseen would be relevant given that his mental health was directly 

implicated by his cause of action”).
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consent of the party. See In re Fortieth Statewide Investigating Grand 

Jury, 220 A.3d at 566-567 (stating that, Section 7111(a) permits disclosure 

to only those parties designated by the statute, unless consent is provided). 

To enhance and improve mental health treatment, the Mental Health 

Procedures Act, in the absence of patient consent, shields from disclosure all 

documents, including treatment and diagnosis records. To achieve these 

purposes, the exception to confidentiality afforded by Section 7111(a)(3) is 

strictly construed as permitting disclosure only to the trial court in the course 

of the legal proceeding, and only as when the legal proceeding is authorized 

by the Mental Health Procedures Act.

Therefore, in the case sub judice, the trial court erred as a matter of law

in finding that Appellant’s competency petition did not fall under the auspices 

of the confidentiality protections afforded by the Mental Health Procedures Act

because Appellant’s competency petition detailed his mental health treatment 

and diagnosis, which the Mental Health Procedures Act was designed to 

protect from public disclosure without authorization. As such, the trial court 

abused its discretion and erred as a matter of law in denying Appellant’s 

request to have all of the documents concerning his mental health treatment 

and diagnosis sealed. A review of the competency petition demonstrates that 

it contains, inter alia, assertions pertaining to Appellant’s mental health 

treatment and his need for continuing mental health treatment, and identifies, 

inter alia, several of Appellant’s treating psychiatrists and licensed 

professional counselors. As such, the competency petition in the case sub 
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judice falls within the definition of “all documents” relating to a person’s 

mental health treatment.

20

Consequently, we vacate the trial court’s May 20, 2021 order denying 

Appellant’s request to seal his competency petition. We remand the case to 

the trial court so that the trial court may enter an order sealing Appellant’s 

petition and his amended petition seeking an order directing a competency 

evaluation. The trial court may direct that the docket reflect the filing of such 

documents and the resulting disposition, but these documents are protected 

from disclosure in the public judicial record based upon the specific 

information contained therein.

21

Order vacated. Case remanded with instructions. Jurisdiction 

relinquished.

Judge Pellegrini joins.

____________________________________________

20 To be clear, we do not intend that our disposition of the case sub judice

create a blanket rule of confidentiality over all petitions and motions related 

to requests for orders directing a competency evaluation. Given the unique 

nature of the pleadings required, including the assertions and evidence 

provided therein, to establish the prima facie question of incompetency, an 

individual assessment of the applicability of Section 7111(a) is required. As 

discussed supra, good practice is for a petitioner to set forth general assertions 

in support of a competency evaluation that do not detail mental health 

treatment and diagnosis and request that the trial court conduct a 

closed-court, or in-camera review of the matter where such confidential 

documents, if available, may be presented.

21 The public’s right to access judicial records, as otherwise permitted by law, 

remains intact through proper notation on the trial court docket of the action 

and disposition of matters involving a competency evaluation.
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Judge Sullivan files a Concurring and Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2022