Pennsylvania Supreme Court to Decide If Mediation Privilege Can Be Waived Through Litigation Conduct

Anything you say in mediation cannot be used against you in a court of law … or can it? Many civil litigators are aware of Pennsylvania’s statutory privilege protecting against the discovery disclosure of “mediation communications and mediation documents,” which renders these inadmissible at trial, an administrative proceeding or arbitration. See 42 Pa.C.S. § 5949(a).  This law carves out an exception for “a settlement document” in an action to enforce a settlement agreement, but that exception applies only to a “written agreement signed by the parties to the agreement.” Id. § 5949(b)(1) & (c).

The Supreme Court of Pennsylvania recently agreed to hear a case that could clarify another important question: Can a party implicitly waive the mediation privilege through its conduct during litigation?

Toppy v. Passage Bio, Inc.

Toppy arises from a wrongful termination dispute brought by a former employee of Passage Bio, a genetic medicines company focused on developing gene-based therapies for neurodegenerative diseases. The former employee plaintiff, Toppy, was a company vice president who was terminated after just six months on the job. After his termination, Toppy brought claims against Passage Bio for discrimination, misrepresentation and defamation.

The parties mediated Toppy’s claims, after which both sides thought they had reached a binding settlement.  However, the parties could not agree on a final written settlement agreement and never executed one. Toppy later filed a second suit asserting breach of the alleged settlement agreement and attached to his complaint an email with the mediator purportedly confirming the parties’ settlement.

During discovery, additional communications with the mediator were exchanged between the parties without objection.  Before trial, Passage Bio filed a motion in limine “to exclude mediator testimony and evidence of mediation communications,” based on the terms of a written mediation agreement and the statutory mediation privilege. Over Toppy’s opposition, the trial court granted the motion.

On appeal to the Superior Court of Pennsylvania, Toppy asserted that Passage Bio waived its right to invoke Section 5949’s privilege because it never sought to strike the mediation documents he attached to his complaint. Toppy v. Passage Bio, Inc., 348 A.3d 750, 2025 WL 2741847, at *7 (Pa. Super. Sept. 25, 2025), reargument denied (Dec. 4, 2025), appeal granted in part, No. 486 EAL 2025, 2026 WL 2039801 (Pa. July 15, 2026). Passage Bio argued that Section 5949 provides an evidentiary privilege that is not dependent on how the parties handled documents in discovery or motion practice.  Id.

The Superior Court agreed with Passage Bio, concluding that it could invoke the mediation privilege at trial even though mediation communications had previously surfaced during the litigation: “We can find no barrier to Passage Bio invoking the mediation privilege to preclude disclosure of certain communications at trial, despite referencing those communications during discovery after Toppy presented them to the court.” Id. The Superior Court concluded that none of the exceptions to the statutory mediation privilege applied.  Id. 

The Supreme Court Will Consider Implicit Waiver

In July 2026, the Supreme Court of Pennsylvania granted Toppy’s petition for allowance of appeal on this issue:

Can Pennsylvania’s mediation privilege, 42 Pa.C.S. § 5949(a), be implicitly waived when mediation communications and mediation documents are disclosed and used in pending litigation between the parties to the mediation, and the party claiming privilege fails to take any remedial action until filing a pretrial motion in limine more than four years after privileged material was made public?

Toppy v. Passage Bio, Inc., 2026 WL 2039801, at *1 (Pa. July 15, 2026)

The way the question is phrased suggests the Supreme Court will consider whether litigation conduct, including how parties handle mediation materials in pleadings, discovery and motion practice, can result in an implicit waiver of the privilege. If the Court rejects implicit waiver, it would reinforce the robust evidentiary protection afforded by the statutory mediation privilege. But if the Court recognizes implicit waiver, litigators would need to assert mediation privilege objections immediately upon disclosure of protected mediation materials.  Otherwise, they risk forfeiting Section 5949’s protection. 

Regardless of how the Supreme Court ultimately decides Toppy, the case provides an important reminder for litigators: mediation materials should be handled carefully from the moment they appear in subsequent litigation. How and when a party responds to the disclosure of those materials may become increasingly significant depending on the Court’s ruling.