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HomeMy WebLinkAbout93-2250 Civil Law SUSAN M. NESBELLA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW CROWN AMERICAN CORPORATION : t/d/b/a CARLISLE PLAZA MALL, : and GIANT FOOD STORES, INC., : Defendants : : v. : WELLS FARGO SECURITY GUARD : SERVICES, INC., : Additional Defendant : NO. 2250 CIVIL 1993 IN RE: DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES ON DAMAGES BEFORE OLER, J. ORDER OF COURT AND NOW, this /]~ day of February, 1995, upon consideration of Defendants' Motion To Compel Plaintiff's Discovery Responses on Damages, and following a discovery conference by telephone in which Plaintiff was represented by David B. Dowling, Esq., Defendant, Crown American Corporation t/d/b/a Carlisle Plaza Mall was represented by Jeffrey D. Wright, Esq., Defendant, Giant Food Stores, Inc., was represented by George B. Faller, Jr., Esq., and Additional Defendant, Wells Fargo Security Guard Services, Inc., was represented by Elaine D. Solomon, Esq., for the reasons stated in the accompanying Opinion it is ORDERED and DIRECTED that to the extent Plaintiff intends to inform the fact-finder at trial that Plaintiff received counseling and/or treatment from the YWCA Rape Crisis and Domestic Violence Services in Harrisburg, Pennsylvania, or from Michael E. Allwein, M.S., Plaintiff shall permit discovery of the applicable records of that entity or person pertaining to her case, or be precluded from such reference at trial. The discovery authorized herein shall be provided at least 30 days prior to Plaintiff's second deposition. No use of such information shall be made by Defendant except for purposes of this case. All other relief requested by Defendants is DENIED. BY THE COURT, J. Wesley Ol~r, Jr., David B. Dowling, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant Giant Food Stores, Inc. Jeffrey D. Wright, Esq. 222 E. Orange Street Lancaster, PA 17602 Attorney for Defendant Crown American Corporation Elaine D. Solomon, Esq. 12th Floor, JFK Boulevard Philadelphia, PA 19103 Attorney for Additional Defendant Wells Fargo Security Guard Services, Inc. :rc SUSAN M. NESBELLA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : CROWN AMERICAN CORPORATION : t/d/b/a CARLISLE PLAZA MALL, : and GIANT FOOD STORES, INC., : Defendants : : V. : WELLS FARGO SECURITY GUARD : SERVICES, INC., : Additional Defendant : NO. 2250 CIVIL 1993 IN RE: DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S DISCOVERY RESPONSES ON DAMAGES BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. The present negligence action arises out of a sexual assault which occurred in a mall parking lot where the victim worked. Defendants are the victim's employer and the mall owner; Additional Defendant is a security guard company employed by the mall owner. In the complaint, Plaintiff seeks damages against Defendants for, inter alia, "emotional trauma.,,~ In this regard, she received counseling and/or treatment from the YWCA Rape Crisis and Domestic Violence Services in Harrisburg, Pennsylvania, and from Michael E. Allwein, M.S.2 It is not clear from the record whether Mr. Allwein is a licensed psychologist. ~ Plaintiff's Complaint, paragraphs 13, 18. 2 Plaintiff's Response to Defendants', Giant Food Stores, Inc. and Crown American Corp., t/d/b/a Carlisle Plaza Mall, Motion To Compel in re Communications Made to Sexual Assault Counselor, at 2. NO. 2250 CIVIL 1993 Plaintiff's counsel has indicated that both the rape counselors and Mr. Allwein may be called to testify on behalf of Plaintiff at trial, and that expenses for their services may be items of damage.3 For disposition at this time is a motion of Defendants to compel disclosure of records relating to Plaintiff of the rape counseling service and of Mr. Allwein. In response, Plaintiff cites Section 5945.1 of the Judicial Code (privilege regarding confidential communications to sexual assault counselors).4 DISCUSSION The Judicial Code provides a statutory privilege with respect to confidential communications to sexual assault counselors, in the following form: No sexual assault counselor may, without the written consent of the victim, disclose the victim's confidential oral or written 3 In the telephone conference, Plaintiff's counsel advised that he was unaware presently of any expenses incurred in connection with the YWCA services, but that expenses had been incurred with respect to Mr. Allwein's services. 4 Act of December 23, 1981, P.L. , No. 169, Sl, as amended, 42 Pa. C.S. §5945.1 (1994 Supp.). 2 NO. 2250 CIVIL 1993 communications to the counselor nor consent to be examined in any court or criminal proceeding.5 A "victim" includes "[a] person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault .... ..6 A "sexual assault counselor" is "[a] person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of sexual assault training and is under the control of a direct services supervisor of a rape crisis center, whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.''7 A "rape crisis center" is "[a]ny office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and 5 Act of December 23, 1981, P.L. __, No. 169, §1, as amended, 42 Pa. C.S. §5945.1(b)(1) (1994 Supp.). The act also provides as follows: No coparticipant who is present during counseling may disclose a victim's confidential communication made during the counseling session nor consent to be examined in any civil or criminal proceeding without the consent of the victim. Id., ~5945.1(b)(2). 6 Act of December 23, 1981, P.L. , No. 169, §1, as amended, 42 Pa. C.S. ~5945.1(a) (1994 Supp.). 7 Act of December 23, 1981, P.L. , No. 169, §1, as amended, 42 Pa. C.S. §5945.1(a) (1994 Supp.). 3 NO. 2250 CIVIL 1993 legal accompaniment and follow-up counseling.-8 A statutory privilege pertaining to confidential communications to psychiatrists and licensed psychologists is also contained in the Judicial Code. It provides as follows: No psychiatrist or person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), 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.9 It has been said that the privilege respecting communications to sexual assault counselors is "'the equivalent of ... [the privilege] involving private psychotherapeutic treatment'" and that it "'is absolute and applies both to oral communications and to records created during the course of the confidential relationship.'" Commonwealth v. Davis, Pa. Super. , , 650 A.2d 452, 459 (1994), quoting Commonwealth v. Gibbs, 434 Pa. Super. 280, 284-85, 642 A.2d 1132, 1134 (1994). Such a privilege can, of course, be waived.~° 8 Act of December 23, 1981, P.L. , No. 169, Sl, as amended, 42 Pa. C.S. S5945.1(a) (1994 Supp.). 9 Act of July 9, 1976, P.L. 586, ~2, as amended, 42 Pa. C.S. ~5944 (1994 Supp.). ~o See Commonwealth v. Davis, Pa. Super. , 650 A.2d 452 (1994). 4 NO. 2250 CIVIL 1993 In Loftus v. Consolidated Rail Corp., 12 D. & C.4th 357 (Cumberland Co. 1991), Judge Hess of this court carefully reviewed the considerations involved in ruling upon a defendant's motion to discover a plaintiff's psychological records, where damages are sought for emotional distress and mental anguish. In the context of an action under the Federal Employers' Liability Act for emotional stress and mental anguish arising out of a false accusation, Judge Hess concluded as follows: The weight of existing case authority clearly provides that in order to pursue psychological damages, the plaintiff must accede to discovery with respect to mental- health care providers with whom he or she has consulted. We will therefore direct an answer to the defendant's interrogatory with the understanding that, should the plaintiff continue to insist upon the assertion of statutory privilege, then his claim for emotional and mental injury will be dismissed. Id. at 361-62; Shertzer v. Institute of Pastoral Care, Inc., 40 Cumberland L.J. 159 (Hess, J.). In the present case, it appears that a major element of the damages sought by Plaintiff will be psychological in nature. For this reason, and based upon the foregoing authority, the following Order will be entered: ORDER OF COURT AND NOW, this day of February, 1995, upon consideration of Defendants' Motion To Compel Plaintiff's Discovery Responses on Damages, and following a discovery conference by telephone in which 5 NO. 2250 CIVIL 1993 Plaintiff was represented by David B. Dowling, Esq., Defendant, Crown American Corporation t/d/b/a Carlisle Plaza Mall was represented by Jeffrey D. Wright, Esq., Defendant, Giant Food Stores, Inc., was represented by George B. Faller, Jr., Esq., and Additional Defendant, Wells Fargo Security Guard Services, Inc., was represented by Elaine D. Solomon, Esq., for the reasons stated in the accompanying Opinion it is ORDERED and DIRECTED that to the extent Plaintiff intends to inform the fact-finder at trial that Plaintiff received counseling and/or treatment from the YWCA Rape Crisis and Domestic Violence Services in Harrisburg, Pennsylvania, or from Michael E. Allwein, M.S., Plaintiff shall permit discovery of the applicable records of that entity or person pertaining to her case, or be precluded from such reference at trial. The discovery authorized herein shall be provided at least 30 days prior to Plaintiff's second deposition. No use of such information shall be made by Defendant except for purposes of this case. All other relief requested by Defendants is DENIED. BY THE COURT, J. Wesley Oler, Jr., J. David B. Dowling, Esq. One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 Attorney for Plaintiff NO. 2250 CIVIL 1993 George B. Faller, Jr., Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant Giant Food Stores, Inc. Jeffrey D. Wright, Esq. 222 E. Orange Street Lancaster, PA 17602 Attorney for Defendant Crown American Corporation Elaine D. Solomon, Esq. 12th Floor, JFK Boulevard Philadelphia, PA 19103 Attorney for Additional Defendant Wells Fargo Security Guard Services, Inc. :rc