IN RE B

MANDERINO, Justice.

This appeal is from the April 26, 1976, order of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section, holding appellant, Dr. Loren Roth, in contempt. The circumstances surrounding the contempt citation occurred during the dispositional phase of a juvenile delinquency proceeding. A thirteen-year-old boy named "B" was adjudicated a delinquent after he escaped from a juvenile facility and participated in a theft of four automobiles. As part of the court's efforts to determine proper placement for the juvenile, both "B" and his mother were interviewed by various juvenile court personnel. In the course of these interviews it was learned that "B's" mother had received inpatient psychiatric treatment at the University of Pittsburgh, Western Psychiatric Institute and Clinic (WPIC), on four occasions between 1964 and 1974. Based upon this information, the juvenile court's psychiatrist, who had examined both "B" and his mother, recommended ". . . getting the hospital records regarding "B's" mother and her treatment." In response to this recommendation, the juvenile court judge wrote to WPIC requesting release of "B's" mother's psychiatric records. When informed by WPIC that the records would not be released without the patient's consent, the court issued a subpoena to the Administrator of WPIC ordering him to attend a hearing on April 26, 1976, and to bring "B's" mother's records with him. On April 26, 1976, Dr. Roth attended the hearing on behalf of the director of WPIC, and although he had brought the appropriate documents with him, refused to release them to the Court without the patient's consent. Dr. Roth was then adjudged in contempt of court and fined $100.00. Execution of the court's order was stayed pending appeal.

Subsequently, the Juvenile Court issued a written opinion stating that Dr. Roth had been held in "direct civil contempt" for his refusal to obey the subpoena. Appeal was taken to the Superior Court. Although the contempt citation was labeled "civil contempt" by the judge, the Superior Court found that ". . . no standards were attached to the sanction by which appellant could purge himself of his contempt . . .," that the dominant purpose of the contempt order was punitive in nature, and that therefore, the contempt was criminal. In re B, 247 Pa. Super. 395, 372 A.2d 884 (1977). Having concluded that the contempt was criminal rather than civil, the Superior Court ordered Dr. Roth's appeal transferred to us. Id. This appeal followed.

Initially, we note our agreement with the Superior Court that exclusive jurisdiction over this appeal is vested in us by the Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(5). 17 Pa.C.S.A. § 211.202(5) (Supp. 1978). Although the Juvenile Court characterized its contempt citation as "civil," that classification is not determinative. Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975). We said in In Re Martorano, 464 Pa. 66, 77, 346 A.2d 22, 27-28 (1975):

"There is nothing inherent in a contemptuous act or refusal to act which classified that act as 'criminal' or 'civil.' The distinction between criminal and civil contempt is . . . a distinction between two permissible judicial responses to contumacious behavior.

. . . . .

These judicial responses are classified according to the dominant purpose of the court."

As we said in Commonwealth v. Charlett, 481 Pa. 22, 391 A.2d 1296 (1978), quoting from Woods v. Dunlop, supra, 461 Pa. at 40, n. 2, 334 A.2d at 622, n. 2:

"Discovery of the Court's dominant purpose requires a functional analysis of the court's action. . . . Basically, the reviewing court must decide whether the citing court's purpose was to 'vindicate the dignity and authority of the court and to protect the interest of the general public.' Such citation is for criminal contempt. If the citation's purpose is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of a litigant or a private interest the citation is for civil contempt." (citations omitted).

Clearly, the dominant purpose behind the court's contempt order was to vindicate the court's authority by punishing appellant for his refusal to obey the court's order. Immediately following his refusal to give the hospital records to the court, appellant was adjudged in contempt and a fine of $100.00 was assessed. No conditions or standards were attached which would have allowed appellant to purge himself of his contempt by compliance with the court's order. Appellant was thus powerless to escape by compliance. Thus, the contempt was criminal in nature and the appeal properly lies with us. We therefore address the merits of the controversy.

Appellant's argument is two-fold. He first argues that a patient's psychiatric records are privileged from judicial disclosure in a juvenile delinquency proceeding by the so-called doctor-patient privilege statute. He also contends that the patient's constitutional right of privacy prevents disclosure of information obtained by the doctor within the confines of the doctor-patient relationship. Ordinarily, when faced with an issue raising both constitutional and non-constitutional questions, we will make a determination on non-constitutional grounds, and avoid the constitutional question if possible. Commonwealth v. Staley, 476 Pa. 171, 381 A.2d 1280 (1978). We conclude that the doctor-privilege statute does not prohibit disclosure of the records in this case, but that their disclosure is barred by the patient's constitutionally protected right of privacy. We will therefore discuss both the constitutional and the non-constitutional questions raised.

The doctor-patient privilege statute, Act of June 7, 1907, P.L. No. 462, as amended, 28 P. S. § 328, provides:

"No person authorized to practice physics or surgery shall be allowed, in any civil case, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil cases, brought by such patient, for damages on account of personal injuries."

In ruling that the privilege created by this statute did not apply in the present context, the juvenile court relied on three different grounds: (1) that the records were not "communications," (2) that disclosure of the records would not "tend to blacken" "B's" mother's character, and (3) that general considerations of public policy, particularly the need for the court to assure proper placement of a juvenile adjudicated delinquent, mandated disclosure of the psychiatric records.

Pennsylvania appellate courts have had little occasion to consider the parameters of the privilege statute. Although the statute's prohibition speaks in terms of ". . . any information. . . acquired in attending the patient," (emphasis added) this Court, when first called upon to construe the statute, in In re Phillips' Estate, 295 Pa. 349, 145 A. 437 (1929), limited the prohibition to "communications" received from the patient, and held that the act does not prevent disclosure of information learned by a doctor through examination or observation. See also, Panko v. Consolidated Mutual Insurance Co., 423 F.2d 41 (3d Cir. 1970) (Pennsylvania privilege statute applies only to communications and not to information acquired by physical examination); and Woods v. National Life and Accident Insurance Co., 347 F.2d 760 (3d Cir. 1965) (Pennsylvania privilege statute applies only to patient's communications which tend to blacken patient's character). This distinction between "communications" and "examinations" established by Phillips' Estate, is said to be based upon the purpose of the privilege statute, namely, to create a confidential atmosphere in which the patient will be encouraged to disclose all possible information bearing on his or her illness so that the physician may render effective treatment. The statutory privilege need not apply to information learned by the doctor through observation and examination because confidentiality presumably is not required for the doctor to observe and examine but confidentiality is essential if the doctor's information is to be obtained from the patient's communications.

Nevertheless, appellant argues that the statute should bar testimony of a psychotherapist because, in psychotherapy, most if not all information is obtained from "communications" of the patient.

"In psychotherapy, however, every statement is a link in the chain. Thus all statements are relevant to treatment, and require confidentiality. All physicians may discuss matters with their patients which have no relevance to the illness, but in psychotherapy, almost all, if not all, statements are pertinent to and essential for treatment." Slovenko, Psychotherapy, Confidentiality and Privileged Communications 44 (1966).

To support this proposition, appellant relies on the Superior Court's decision in Commonwealth ex rel. Romanowicz v. Romanowicz, 213 Pa. Super. 382, 248 A.2d 238 (1968). In that case the court held in part, that all testimony regarding a psychiatrist's examination of the patient was properly excluded in a child custody dispute. As stated by the Superior Court

"There is nothing in the record . . . which would reflect that the parties ever considered [a stipulation entered by the husband and wife] an agreement to waive the physician-patient privilege. Under such circumstances, the husband could properly invoke the privilege and refuse to have the psychiatrist testify as to the husband's examination." (Emphasis added.)

The court's opinion in Romanowicz does not make clear whether the proposed psychiatric testimony was obtained solely through "observation" of the husband, or whether the psychiatrist's "examination" consisted of conversations with the patient so as to make it "communication" as required by Phillips' Estate, where we said,

"[t]hat which results from an examination only cannot be communications made to the doctor by the patient."

Although Romanowicz is distinguishable from Phillips' Estate in that the "examination" in the latter case apparently resulted from physical observations only while the "examination" in Romanowicz probably included both physical observation and "communication," no explanation is given by the Superior Court for its conclusion that the privilege statute prohibits the disclosure of information obtained through psychiatric examination even though it does not prohibit disclosure of information obtained through physical examination.

Moreover, the Superior Court's opinion in Romanowicz makes no mention of the statute's requirement that to be privileged, the information sought from the doctor must ". . . tend to blacken" the patient's character. Regarding this statutory directive, the court in Skruch v. Metropolitan Life Insurance Co., 284 Pa. 299, 131 A. 186 (1925), concluded that the act's prohibition applies only to "communications" received from the patient which indicate that the patient was suffering from some "loathsome disease." Id.

Based on Skruch, appellee argues that any ailment or condition short of a "loathsome disease" fails to meet the statutory requirement that, to be privileged, its disclosure must tend to blacken the patient's character. Of course, what may have been defined as a "loathsome disease" in 1925, when Skruch was decided, may not remain so today. Whatever the meaning of "loathsome disease," psychiatric treatment does not evidence the existence of such a condition.

The record in this case is devoid of any information indicating whether the records sought by the court contained "communications" or whether the records consisted entirely of "observations" of examining psychiatrists at WPIC. Although we recognize the accuracy of Prof. Slovenko's observations, supra, that most, if not all, psychotherapeutic examinations are performed through "communication" with the patient, it does not necessarily follow that the records made as a result of those examinations also contain the patient's communications. Furthermore, we are unable to conclude that outside knowledge that a person has undergone psychotherapeutic treatment will ". . . tend to blacken" the person's reputation. See Soltaniuk v. Metropolitan Life Insurance Co., 133 Pa. Super. 139, 2 A.2d 501 (1938) (information that patient suffered from chronic alcoholism and delirium tremens was not information which tended to blacken character of patient so as to be subject of statutory privilege); Sweeney v. Green, 116 Pa. Super. 190, 176 A. 849 (1935) (fact of consultation with physician is not privileged).

For these reasons, we cannot conclude that the privilege statute prohibits testimony such as was sought from appellant in this case. Our analysis, however, is not yet at an end, for as appellant argues, the Juvenile Court's order that appellant reveal what he learned in the course of professional treatment of a patient also touches upon the right of privacy protected by both the federal constitution, and by the constitution of this Commonwealth.

While no specific guarantee of a right of privacy is to be found in the Constitution of the United States, the U.S. Supreme Court has said that zones of privacy are created by the more specific constitutional guarantees, and governmental intrusion into these zones is thereby limited. See, e. g., Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This right of privacy is a fundamental one, said to be a right older even than the Bill of Rights, Roe v. Wade, supra; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). See also Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). As stated by Mr. Justice Douglas in his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the constitutionally protected right of privacy emanates from the totality of the constitutional scheme under which we live. Also, it has been said that the roots of the right may be found in the penumbra of various specific constitutional provisions such as the First Amendment's guarantee of freedom of speech and press see, e. g., Roe v. Wade, supra; Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Stanley v. Georgia, supra; and of freedom of association see, e. g., NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); the Third Amendment's prohibition against the peacetime quartering of soldiers in any house without the consent of the owner see, e. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Griswold v. Connecticut, supra; Poe v. Ullman, supra, (dissenting opinion of Harlan, J.); the Fourth Amendment's prohibition of unreasonable searches and seizures see, e. g., Roe v. Wade, supra; Griswold v. Connecticut, supra; the Fifth Amendment's privilege against self-incrimination, see e. g., Roe v. Wade, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1062, 16 L.Ed.2d 694 (1966); Griswold v. Connecticut, supra; Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); and the Ninth Amendment's reservation to the people of rights not expressly enumerated in the Constitution, see, e. g., Griswold v. Connecticut, supra; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The right of privacy derived from these constitutional underpinnings protects the privacy of intimate relationships like those existing in the family, marriage, motherhood, procreation, and child rearing. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). As such, the protection extends not only to the home, Stanley v. Georgia, supra, but also to the doctor's office, the hospital, the hotel room, or as is otherwise required to safeguard the right to privacy involved in such intimate relationships. Paris Adult Theatre I v. Slaton, supra.

The parties in this appeal have not cited, and our research has not revealed, any Pennsylvania appellate court decision dealing explicitly with this constitutional right of privacy. The general right of privacy, however, has been recognized by Pennsylvania courts as an independent and distinct legal concept in the field of tort law. See, Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959); Mack Appeal, 386 Pa. 251, 126 A.2d 679 (1956). Indeed, in Mack Appeal, the court may implicitly have anticipated the reasoning of the later United States Supreme Court cases cited above. Mack dealt with an appeal from a contempt citation entered against various defendant news reporters who had surreptitiously photographed the defendant during a criminal trial in violation of a local rule of court. Addressing the issue of whether the local rule prohibiting the taking of photographs during court sessions violated the reporter's federal and state constitutional right to freedom of the press, the court noted that at least one of the rule's purposes was to insure the right of privacy of those on trial:

"The [reporters] also violated the rules of court of Westmoreland County, which were made to insure the right of privacy of the defendant. There can be no question that American jurisprudence recognizes the right of privacy; the only question being its limits. See 'The Right to Privacy,' by Samuel D. Warren and Louis D. Brandeis, 4 Harvard Law Review, 193. As stated in 77 C.J.S. Right of Privacy, at page 397, in some, but not in all, jurisdictions the existence of such right has been recognized, even in the absence of statutory regulation. In this jurisdiction we find no basis for denying the existence of such right or its enforceability. See the excellent opinion of Judge Allessandroni in Clayman v. Bernstein, 38 Pa. D. C. 543, and cf. Harlow v. Buno Co., Inc., 36 Pa.Dist. Co.R. 101. See also Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 A. 631, and particularly the concurring opinion of Justice Maxey appearing at page 456, of 327 Pa. at page 642 of 194 A.; and Restatement, Torts, § 867.

The court below, as are all courts, was charged with a duty to protect the right of privacy of the prisoner. It cannot be doubted that the prisoner was powerless to do so by any means within his control; and in such case the court has an inherent duty to use all reasonable means to safeguard that right. It is true that, in a sense, the prisoner has been set apart from the general public and has become a 'public figure.' Yet he is the involuntary subject of court restraint and entitled to the safeguard of his individual right of privacy, just as the court is charged with securing to him his right of a fair trial and other rights too numerous to mention. In this case the defendant was found guilty of murder in the first degree by verdict of the jury, but at the same time he was a ward of the court who must be protected against the invasion of his rights by the press as well as the public."

We conclude that in Pennsylvania, an individual's interest in preventing the disclosure of information revealed in the context of a psychotherapist-patient relationship has deeper roots than the Pennsylvania doctor-patient privilege statute, and that the patient's right to prevent disclosure of such information is constitutionally based. This constitutional foundation emanates from the penumbras of the various guarantees of the Bill of Rights, Griswold v. Connecticut, supra, as well as from the guarantees of the Constitution of this Commonwealth, see especially, Article I, Section 1 (inherent right to enjoy and defend life and liberty, to protect reputation and pursue happiness); Article I, Section 2 (all political power is inherent in the people); Article I, Sections 3 and 4 (people's right to freedom of religion); Article I, Section 7 (freedom of press and speech guaranteed to every citizen so that they may speak, write, or print freely on any subject ". . . being responsible for the abuse of that liberty."); Article I, Section 8 (people shall be secure in their persons, houses, papers, and possessions from unreasonable search and seizures); Article I, Section 9 (an accused in a criminal proceeding cannot be compelled to give evidence against himself); Article I, Section 11 (courts are to be open to all to provide remedy for injury done to reputation); Article I, Section 20 (right of assembly); Article I, Section 23 (prohibition of the peacetime quartering of troops in any house without the consent of the owner); and Article I, Section 25 (reservation of powers in the people); and Article I, Section 26 (prohibition against the denial by the Commonwealth of the enjoyment of any civil right). In some respects these state constitutional rights parallel those of the Federal Constitution, see especially, Amendments 1, 3, 4, 5, and 9. In other respects our Constitution provides more rigorous and explicit protection for a person's right of privacy e. g., Article I, Sections 1, 3, 4, 7 and 11.

The nature of the psychotherapeutic process is such that disclosure to the therapist of the patient's most intimate emotions, fears, and fantasies is required. As pointed out in appellant's brief,

"People usually enter psychotherapy because they have deep-seated conflicts and impairment of functioning which limit their ability to work effectively and to enjoy fully satisfying relationships with other people. To alleviate these blocks and conflicts, the therapist asks the patient to abandon 'rational thought' and to express thoughts and fears that may never have been revealed to anyone else. Indeed, these innermost thoughts are often so painful, embarrassing or shameful that the patient may never before have allowed himself to acknowledge them."

The patient in psychotherapy knows that such revelations will be expected if the process is to be beneficial. In laying bare one's entire self, however, the patient rightfully expects that such revelations will remain a matter of confidentiality exclusively between patient and therapist. See, Caesar v. Mountanos, 542 F.2d 1064 (9th Cir. 1976); In re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1 (1970).

The record in the instant case reveals that the patient's hospital records were subpoenaed so that they could be evaluated by the juvenile court judge, the court's staff psychologist, staff psychiatrist, and staff social workers, so that they might assist the court in determining who should have custody over the patient's delinquent son. More specifically, according to the record of the hearing held pursuant to the subpoena of the hospital records regarding Mrs. B, these records were sought so that the juvenile court could decide whether or not to allow Mrs. "B's" delinquent son to return home to live with her. The court, based on the recommendation of its staff psychologist, felt that much of the juvenile's psychiatric history could be explained by the mother's history. We applaud the court's concern about proper placement for a juvenile; the court's efforts to place the child with one of his parents are commendable.

We recognize that our holding may, in some cases, make it more difficult for the court to obtain all the information it might desire regarding members of the juvenile's family, or about the juvenile's friends, neighbors, and associates. The individual's right of privacy, however, must prevail in this situation. Moreover, much, if not all, of the information sought by the juvenile court might have been obtained without ordering disclosure of materials revealed within the private confines of the mother's constitutionally protected doctor-patient relationship. The mother might have voluntarily submitted to psychiatric examination by a court-appointed psychiatric expert who could evaluate her ability to provide a proper home for her child, or who could, based on the findings of such examination, recommend appropriate alternative placement. Neither the doctor-patient privilege created by statute, nor the constitutionally protected zone of privacy would bar such an evaluation because the mother would not be relying detrimentally on either the doctor-patient privilege or upon her right of privacy if she chose to submit to such an evaluation. Cf. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). In this way, the juvenile court could accommodate its legitimate interest in assuring proper placement of the juvenile while at the same time preserving other important social interests.

For these reasons, we hold that the court below was without authority to order appellant to reveal information obtained within the context of a psychotherapist-patient relationship. Accordingly, the court was without authority to hold appellant in contempt for refusing to divulge such information.

Order reversed.

ROBERTS, J., filed a concurring opinion.

O'BRIEN, J., concurred in the result.

EAGEN, C. J., filed a dissenting opinion.

POMEROY, J., filed a dissenting opinion in which Mr. Justice NIX joined.