The opinion
J-A24017-24
2025 PA Super 148
ERIN AND STEPHEN BOYLE, : IN THE SUPERIOR COURT OF
PARENTS AND NATURAL GUARDIANS : PENNSYLVANIA
OF BB, A MINOR, AND IN THEIR :
OWN RIGHT :
:
:
v. :
:
: No. 2454 EDA 2023
MAIN LINE HEALTH, INC., MAIN LINE :
HOSPITALS, INC., MAIN LINE :
HEALTHCARE, AND SCOTT BAILEY, :
M.D. :
:
Appellants
Appeal from the Order Entered August 21, 2023
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2019-15082
BEFORE: LAZARUS, P.J., KING, J., and LANE, J.
CONCURRING/DISSENTING OPINION BY LANE, J.: JULY 17, 2025
I agree with the learned Majority that the Main Line Defendants did not
meet their burden of establishing that the PSRS report arose out of a matter
reviewed by a patient safety committee or a governing board pursuant to their
section 311(b) MCARE Act responsibilities, and therefore concur in the
Majority’s affirmance of the trial court’s order insofar as it required the Main
Line Defendants to disclose the PSRS report. However, I disagree with the
Majority’s reversal of the portion of the trial court’s order finding that the Main
Line Defendants failed to establish that the PSQIA privilege applied to the
SBAR and PSOW documents, and respectfully dissent from that ruling. I
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therefore concur in part and dissent in part from the Majority’s holdings. I
write separately to explain the basis for my dissent.
The PSQIA contains three subsections dealing with privilege; however,
only two subsections potentially apply to this matter. For privilege to attach
under subsection (i), documents must be “assembled or developed by a
provider for reporting to a patient safety organization [(“PSO”)] and are
reported to a [PSO].” 42 U.S.C. § 299b-21(7)(A)(i)(I). A second potential
PSQIA privilege is prescribed by subsection (ii), which pertains to documents
“which identify or constitute the deliberations or analysis, or identifies the fact
of reporting pursuant to, a patient safety evaluation system.” Id. § 299b-
21(7)(A)(ii).
In responding to the Boyle’s motions to compel, the Main Line
Defendants relied on subsection (i) as a basis for PSQIA privilege for the SBAR
and PSOW documents. See Objections and Responses to Motion to Compel,
3/2/23; see also Memorandum of Law in Support of Response to Motion to
Compel, 3/2/23, at 8-10; Response to Motion to Compel, 7/17/23, at 19-20;
Memorandum of Law in Support of Response to Motion to Compel, 7/17/23,
at 9-12. Thus, the trial court only considered whether the Main Line
Defendants established that the PSQIA privilege prescribed by subsection (i)
applied to the SBAR and PSOW documents. In this regard, the trial court
determined that the Main Line Defendants “failed to present evidence that the
information and documents sought by [the Boyles] were assembled or
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developed by [the Main Line Defendants] for reporting to a [PSO] or were
reported to a [PSO].” Trial Court Opinion, 2/6/24, at 7. The trial court further
determined that there was no allegation or evidence in the record that the
PSOW or SBAR documents were created for reporting to a federal PSO. See
id. Thus, the August 21, 2023 order compelling production of the SBAR and
PSOW documents, from which the Main Line Defendant’s now appeal, was
based on the trial court’s rejection of the Main Line Defendant’s singular
argument that these documents were PSQIA privileged under subsection (i).
Importantly, the Main Line Defendants did not raise subsection (ii) as
an alternate basis for PSQIA privilege of the SBAR and PSOW documents until
they retained new counsel and filed a motion for reconsideration three weeks
after the August 21, 2023 order to compel had been entered. See Motion for
Reconsideration, 9/15/23, at 32-35. Therein, the Main Line Defendants
expressly acknowledged that they had not previously raised subsection (ii) as
a basis for PSQIA privilege and had instead only relied on subsection (i). See
id. at 32.
This Court has long held that raising an issue for the first time before
the trial court in a motion for reconsideration does not preserve it for appeal.
See Stange v. Janssen Pharms., Inc., 179 A.3d 45, 64 n.7 (Pa. Super.
2018) (holding that issue raised for the first time in motion for reconsideration
to trial court was waived); see also Meyer-Chatfield Corp. v. Bank Fin.
Servs. Grp., 143 A.3d 930, 938 n.4 (Pa. Super. 2016) (same); Prince
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George Center, Inc. v. United States Gypsum Co. (In re Prudential Ins.
Co. of Am.), 704 A.2d 141, 145 (Pa. Super. 1997) (holding that issues raised
initially in a motion for reconsideration are beyond the scope of appellate
jurisdiction and declining to consider them on appeal).
Moreover, the Main Line Defendants sought to support their newly raised
argument regarding subsection (ii) with evidence that was not previously
submitted to the trial court. Namely, the Main Line Defendants appended to
their motion for reconsideration a supplemental affidavit of Patricia Walsh, and
attached as an exhibit thereto a PSES policy, neither of which were previously
submitted to the trial court in opposition to the motions to compel. See
Supplemental Affidavit of Patricia Walsh, 9/13/23, and Exhibit A thereto
(“Policy: Patient Safety Evaluation System”). In fact, the supplemental
affidavit of Ms. Walsh was executed three weeks after the trial court entered
its August 21, 2023 order granting the motion to compel. Because these
documents were created after the order appealed from and/or submitted for
the first time in the Main Line Defendants’ motion for reconsideration, this
Court may not consider them on appeal. See Stange, 179 A.3d at 64 n.7;
see also Meyer-Chatfield Corp., 143 A.3d at 938 n.4; Prince George
Center, Inc., 704 A.2d at 145.
I respectfully disagree with the Majority’s conclusion that the Main Line
Defendant’s argument regarding subsection (ii) is not waived because “[i]n
the privilege log, the Main Line Defendants asserted that the PSOW and SBAR
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were privileged ‘patient safety work product’ as defined by Section 299b-21
of PSQIA generally.” Majority Memorandum Opinion at 16 n.12 (emphasis
added). As I explained above, the PSQIA contains three subsections dealing
with privilege. Thus, while a general assertion of PSQIA privilege in a
privilege log could implicate all three subsections, the Main Line Defendants
nevertheless bore the burden of asserting and establishing the application of
a specific privilege. See Ungurian v. Beyzman, 232 A.3d 786, 795 (Pa.
Super. 2020) (holding that the party asserting a privilege bears the burden of
producing facts establishing proper invocation of the privilege); see also
Fisher v. Erie Ins. Exch., 258 A.3d 451, 461 (Pa. Super. 2021) (holding that
the party invoking a privilege must initially set forth facts showing that the
privilege has been properly invoked). In discharging this burden, the Main
Line Defendants only briefed and argued the specific application of
subsection (i) before the trial court in response to the motions to compel.
See Pa.R.A.P. 302(a) (providing that issues not raised in the trial court are
waived and cannot be raised for the first time on appeal). Accordingly, the
Main Line Defendants did not provide the trial court with any opportunity to
consider or address whether the PSQIA privilege prescribed by subsection (ii)
could potentially apply to the PSOW and SBAR documents. See Gustine
Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 892 A.2d 830,
835 (Pa. Super. 2006) (holding that the purpose of Rule 302(a) is “to provide
th[e] [trial] court with the opportunity to consider the issue, rule upon it
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correctly, and obviate the need for appeal”); see also Kimmel v. Somerset
County Comm'rs, 333 A.2d 777, 779 (Pa. 1975) (holding that “[i]t is a
fundamental principle of appellate review that [appellate courts] will not
reverse a judgment or decree on a theory that was not presented to the trial
court”).
Thus, I believe that the Main Line Defendants are precluded from raising
the application of subsection (ii) before this Court. Accordingly, I would affirm
the trial court’s August 21, 2023 order in all aspects, including its
determination that the Main Line Defendants failed to establish that the PSOW
and SBAR documents were PSQIA privileged under subsection (i).
For these reasons, I respectfully concur in part, and dissent in part, from
the Majority’s opinion.
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