J-S44024-15

                               2016 PA Super 8



CAP GLASS, INC.                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                   v.

TAMMY L. COFFMAN A/K/A TAMMY
KEEFER; ROBERT COFFMAN; LISA
CAVANAUGH AND JOHN CAVANAUGH

APPEAL OF: LISA CAVANAUGH                            No. 2039 WDA 2014


              Appeal from the Order Dated November 14, 2014
              In the Court of Common Pleas of Fayette County
                    Civil Division at No: 1388 of 2014 GD


BEFORE: LAZARUS, STABILE, and JENKINS, JJ.

OPINION BY STABILE, J.:                            FILED JANUARY 13, 2016

      Appellant, Lisa Cavanaugh, appeals from the November 14, 2014 order

compelling the testimony of her husband, John Cavanaugh (“Mr. Cavanaugh”

and collectively with Appellant, the “Cavanaughs”).      Appellant argues the

trial court erred in compelling her husband to disclose confidential marital

communications because 42 Pa.C.S.A. § 5923 forbids such testimony. The

trial court ruled that Appellant cannot avail herself of the protections of

§ 5923 to perpetrate a fraud. After careful review, we affirm in part, reverse

in part, and remand.

      Appellee, CAP Glass, Inc., commenced this action on July 15, 2014

alleging among other things, a cause of action for conversion against John

and   Lisa   Cavanaugh   as   well   as   Tammy   and   Robert   Coffman   (the
J-S44024-15


“Coffmans”).    The complaint alleges that Lisa Cavanaugh, in her role as

Appellee’s in-house accountant, issued 276 fraudulent checks totaling more

than $1.5 million drawn on Appellee’s bank accounts. The complaint alleges

Lisa Cavanaugh issued these checks to the Coffmans, who in turn issued

cash kickbacks to the Cavanaughs.

      Mr. Cavanaugh appeared for a deposition on October 29, 2014, during

which counsel for Mr. Cavanaugh and counsel for Appellant objected to

several questions whose answers could have revealed confidential marital

communications. On November 12, 2014, Appellee filed a motion to compel

Mr. Cavanaugh’s testimony.    The trial court granted the motion two days

later and Appellant filed this timely interlocutory appeal.   She raises two

issues for our review:

      1. Whether the trial court committed an error of law or abused
         its discretion by ordering John Cavanaugh to testify
         concerning the spousal communications of his wife, Appellant
         Lisa Cavanaugh, by finding a fraud exception to the
         confidential spousal communication privilege.

      2. Whether the trial court committed an error of law or abused
         its discretion by ordering John Cavanaugh to testify
         concerning the spousal communications of his wife, Appellant
         Lisa Cavanaugh, where the confidential communications for
         which she claimed the privilege were not made pursuant to a
         joint scheme of fraudulent misappropriation.

Appellant’s Brief at 2.

      First, we must address Appellee’s argument that we lack jurisdiction

over this appeal because the trial court’s order is not a collateral order.




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Appellant filed this appeal from a collateral order pursuant to Pa.R.A.P. 313.

That rule provides:

             (a) General rule. An appeal may be taken as of right
      from a collateral order of an administrative agency or lower
      court.

            (b) Definition. A collateral order is 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.   “The ‘collateral order doctrine’ is construed narrowly, and

each prong of the aforementioned test must be met before an order may be

considered appealable under the doctrine.” Castellani v. Scranton Times,

L.P., 916 A.2d 648, 652 (Pa. Super. 2007), aff'd, 956 A.2d 937 (Pa. 2008).

      Appellee argues the trial court’s order is not separable from and

collateral to the main cause of action because our review of the issues on

appeal will be inextricably intertwined with the merits of Appellee’s causes of

action. Appellee relies on this Court’s opinion in Fidelity Nat. Title Ins. Co.

of New York v. United Settlement Servs., Inc., 924 A.2d 1270 (Pa.

Super. 2007). There, the trial court issued a discovery order compelling the

wife to answer questions she believed implicated the spousal privilege

codified at 42 Pa.C.S.A. § 5924.

      We cannot address Appellee’s argument in support of quashal without

an overview of §§ 5923 and 5924.        Section 5924, at issue in Fidelity,

provides as follows:



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     § 5924. Spouses as witnesses against each other

     (a) General Rule.-- In a civil matter neither husband nor wife
     shall be competent or permitted to testify against each other.

     (b) Exception.—Subsection (a) shall not apply in an action or
     proceeding:

            1) For divorce, including ancillary proceedings for the
     partition or division of property.

           (2) For support or relating to the protection or recovery of
     marital or separate property.

          (3) For custody or care of children, including actions or
     proceedings relating to visitation rights and similar matters.

          (4) Arising under 23 Pa.C.S. Ch. 61 (relating to protection
     from abuse).

           (5) When a statute heretofore or hereafter enacted
     applicable to the action or proceeding provides either expressly
     or by necessary implication that spouses may testify therein
     against each other.

42 Pa.C.S.A. § 5924.

     Thus, § 5924 renders spouses incompetent to testify as witnesses

against each other except as specified in § 5924(b). Section 5924 applies

while the spouses are living and remain legally married. Hunter v. Hunter,

83 A.2d 401, 403 (Pa. Super. 1951), Huffman v. Simmons, 200 A 274,

276 (Pa. Super. 1938); see also Commonwealth v. Clark, 500 A.2d 440,

442 n.1 (Pa. Super. 1985), appeal dismissed, 531 A.2d 1108 (Pa. 1987)




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(discussing the criminal law analogue of § 5924).1      It therefore serves the

purpose of preserving marital harmony.           Hunter, 83 A.2d at 403.    In

addition, our courts have created a fraud exception whereby spouses cannot

rely on § 5924 where its application would assist them in committing a

fraud. Kerr v. Clements, 25 A.2d 737 (Pa. Super. 1942).2

       Section 5923, at issue in this appeal, protects confidential marital

communications:

       § 5923. Confidential communications between spouses

             Except as otherwise provided in this subchapter, in a civil
       matter neither husband nor wife shall be competent or permitted
       to testify to confidential communications made by one to the
       other, unless this privilege is waived upon the trial.

42 Pa.C.S.A. § 5923.          Like § 5924, this section serves to protect and

promote marital harmony.            Hunter, 83 A.2d at 403.    Unlike § 5924,

however, the privilege protecting confidential marital communications

remains in effect after divorce or the death of one spouse. Hunter, 83 A.2d

at 403 (citing Brock v. Brock, 109 A. 486 (Pa. 1887)).

       Our Commonwealth Court has addressed the distinction between

§§ 5923 and 5924 as follows:
____________________________________________


1
  Sections 5923 and 5924 have identical analogues at 42 Pa.C.S.A. §§ 5913
and 5914. The latter two sections apply in criminal trials.
2
  Kerr was decided under 28 P.S. § 317, the predecessor of current § 5924.
Similarly, 28 P.S. § 316 is the predecessor of current § 5923.        See
Commonwealth ex. rel. Platt v. Platt, 404 A.2d 410, 413 (Pa. Super.
1979) (describing former §§ 316 and 317).



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               It must first be noted that the spousal incompetence
        provision of section 5924 and the spousal confidential
        communication privilege of section 5923 are quite separate and
        distinct. The former provision disqualifies a husband or wife to
        give any testimony adverse to the spouse subject to the
        exceptions in 5924(b); the latter is much more limited and
        relates to the competence of a spouse to testify regarding
        confidential communications.

B.K. v. Dep't of Pub. Welfare, 36 A.3d 649, 656 (Pa. Cmwlth. 2012). “To

be protected as a confidential communication, the information must be

gained through the marital relationship and in the confidence that the

relationship inspires.” Id. (citing Commonwealth v. Dubin, 581 A.2d 944,

496 (Pa. Super. 1990), appeal denied, 588 A.2d 912 (Pa. 1991)).

“Communications between spouses are presumed to be confidential and the

party    opposing   the   privilege   bears     the   burden   of   overcoming   this

presumption.” Id. (citing Commonwealth v. Hancharik, 633 A.2d 1074,

1078 (Pa. 1993)).

        “Whether a communication is to be considered as confidential depends

upon its character as well as upon the relation of the parties.”           Seitz v.

Seitz, 32 A. 578 (Pa. 1895).          “It is essential that it should be made in

confidence, and with the intention that it should not be divulged.”          Id. at

578.     “If not made because of the relation of the parties, and in the

confidence which that relation inspires, and which it is the policy of the law

to hold inviolate, it is not privileged.” Id.

        Appellee argues quashal is appropriate because instantly, as in

Fidelity, this Court cannot assess Appellant’s assertion of privilege without

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also assessing the merits of Appellee’s fraud claims.         In other words,

Appellee argues this appeal is improper under Rule 313 because the issue

before us is not separable from and collateral to the underlying causes of

action.

        In Fidelity, the wife argued that the spousal privilege of § 5924

applied after the date on which her husband’s fraud purportedly ceased.

Fidelity, 924 A.2d at 1271.       The husband admitted that he engaged in a

fraudulent scheme, but he also claimed the fraud ceased as of November 8,

2004.     Id.    Thus, the wife believed § 5294 rendered her incompetent to

testify to anything that occurred after that date. The plaintiff asserted the

fraudulent conduct and efforts to conceal it continued after November 8,

2004. Id. at 1272. The trial court found the privilege inapplicable in part

because     it   “does   not   encompass   private   communications   made   in

furtherance of fraud.”     Id. at 1271 (citing Kine v. Foreman, 209 A.2d 1

(Pa. Super. 1965)).

        This Court quashed the appeal from the order compelling the wife’s

testimony, reasoning that we could not address the asserted privilege

without also addressing the merits of the plaintiff’s fraud causes of action.

Id. at 1272.       The wife’s assertion of privilege was dependent upon her

assertion that her husband’s fraud ceased as of a date certain. The plaintiff

disputed whether the fraud ceased as of that date.        Thus, to address the

wife’s assertion of privilege, this Court necessarily had to discern whether


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J-S44024-15


fraudulent conduct occurred after November 8, 2014.          We quashed the

appeal because the asserted privilege was inextricably intertwined with the

merits of the plaintiff’s causes of action. Id.

      In this case, as in Fidelity, the trial court found the asserted privilege

inapplicable because the spouses are accused of fraudulent conduct.

Appellant’s assertion of privilege is, however, distinct from the one at issue

in Fidelity. Here, Appellant asserts that Appellee’s counsel posed questions

that called for disclosure of confidential communications protected under

§ 5923.    Appellant did not assert Mr. Cavanaugh’s incompetence as a

witness pursuant to § 5924, as did the wife in Fidelity.

      This appeal requires only an assessment of the applicability of § 5923

and not an assessment of the merits of Appellee’s claims. Appellant has not

presented the issue in a way that forces this Court to determine whether the

alleged fraudulent conduct actually occurred.      The issue on appeal, put

simply, is whether Appellant can rely on § 5923 to prevent her husband from

divulging confidential marital communications in a conversion action pending

against both of them. Section 5923 applies if the communications at issue

were “gained through the marital relationship and in the confidence that the

relationship inspires.”   B.K., 36 A.3d at 656.       Also, we must address

Appellant’s argument that the so-called fraud exception applies to § 5924

but not § 5923.      These issues are not intertwined with the merits of

Appellee’s causes of action.


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     Next, we consider the remaining two prongs of Rule 313—whether the

asserted right is too important to be denied review and whether it will be

irreparably lost if we deny immediate review. Our Supreme Court has held

that discovery orders requiring disclosure of allegedly privileged materials

are appealable under Rule 313 where, as here, the issue of privilege is

separable from the underlying issue. Ben v. Schwartz, 729 A.2d 547, 551-

53 (Pa. 1999); see also, Castellani v. Scranton Times, L.P., 956 A.2d

937, 942 n.5 (Pa. 2008).    Thus, assertions of privilege whose merits are

sufficiently separable from the underlying issue commonly meet the

remaining two prongs of Rule 313. We conclude that Appellant’s assertion of

privilege does so in this case.     An issue is sufficiently important for

immediate review under Rule 313(b) if it involves rights “deeply rooted in

public policy going beyond the particular litigation at hand.”   Id. at 552

(quoting Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999)). A statutory

privilege protecting confidential marital communications, with its underlying

goal of protecting and promoting marital harmony, obviously qualifies.    In

addition, a disclosure of confidential marital communications cannot be

undone, and therefore the asserted right will be irreparably lost if we defer

appellate review.   Based on the foregoing, Appellant’s collateral appeal is

proper under Rule 313.

     We now turn to the merits. Appellant relies on § 5923 to preclude Mr.

Cavanaugh from divulging confidential marital communications.      She does


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not assert Mr. Cavanaugh’s incompetence as a witness under § 5924. The

trial court relied on the fraud exception to spousal privilege in ordering Mr.

Cavanaugh to answer Appellee’s questions. Appellant notes, correctly, that

Pennsylvania jurisprudence has applied the fraud exception exclusively to

cases involving § 5924 and its predecessor, 28 P.S. § 317. She argues the

fraud exception does not apply to § 5923.

      The trial court relied on Kerr to find the fraud exception applied here.

In Kerr, the plaintiff in an ejectment action alleged the defendants obtained

their purported interest in land by a fraudulent conveyance. Kerr, 25 A.2d

at 738. The defendants—husband and wife—argued the trial court erred in

compelling them to testify against one another.     Id. at 739.    This Court

disagreed, noting that the spouses did not actually testify against one

another—they held a joint interest in the subject property and through their

testimony they supported each other in hope of maintaining that interest.

Id. at 740. In addition, the Kerr Court wrote:

            The prohibition against the competency of husband and
      wife to testify against each other operates only within proper
      bounds. It was not intended in the act to supply the means of
      protecting another in a fraudulent transaction nor to render
      husband and wife secure in the enjoyment of the fruits of fraud.

Id. Thus, the Kerr Court expressly addressed the competency of spouses

as witnesses against each other.     The Court did not address confidential

communications.




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         In Kine, the plaintiff judgment creditor alleged that the debtor

husband was transferring assets to his wife—and thereby out of the reach of

the judgment creditor—through the spouses’ joint interest in a wallpaper

company. Plaintiff asked husband, during husband’s deposition, a series of

questions about his and his wife’s respective roles in the wallpaper company.

Kine, 209 A.2d at 2. The Kine Court cited Kerr for the proposition that the

predecessor of § 5924 did not apply to assist spouses in perpetuating a

fraud.     Id. at 3.    This Court concluded the trial court did not err in

sanctioning the husband for refusing to answer.

         Thus, Kerr and Kine applied a court-created fraud exception to former

28 P.S. § 371. Our Courts, as evidenced in Fidelity, continue to apply the

fraud exception to § 5924 in addition to the statutory exceptions set forth in

§ 5924(b).      We now must decide whether the court-created exception

applies to § 5923. A careful review of the pertinent case law convinces us it

does not.

         In Kine, the husband refused to answer these questions at his

deposition:

               a) Were you employed immediately prior to the formation
         of Crown Wallpaper Company?       (b) Did your wife become
         President of Crown Wallpaper Company at the time of its
         formation? (c) Did your wife perform any services for Crown
         Wallpaper Company in 1948? (d) Who paid for the automobile
         held by your wife but owned by Crown Wallpaper Company? (e)
         Did Crown Wallpaper Company advance the funds to pay for the
         automobile? (f) Did your wife pay for the automobile with her
         money?     (g) Who are the present stockholders of Crown
         Wallpaper Company and who were the stockholders at the time

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       of its formation? (h) Is your wife a stockholder of Crown
       Wallpaper Company? (i) Is your wife employed at the present
       time? (j) Who supports your wife? (k) Does your wife own any
       real estate?

Kine, 209 A.2d at 2. Importantly, none of these questions explicitly asked

the husband to divulge the substance of a private marital communication.

Despite this, the Kine Court wrote as follows:     “The public policy which

protects as confidential the private communications or acts by the

husband and wife does not necessarily extend to those communications or

acts which are in furtherance of a fraud, where the proceedings are based

upon a civil action.” Id. at 3 (emphasis added).

       The Kine Court’s use of the phrase “private communications” has

become the source of some confusion. At least one federal court has relied

on Kine to hold that the fraud exception vitiates the privilege of § 5923.

Brown v. Scafidi, 839 F. Supp. 342, 345 (E.D. Pa. 1993). Likewise, this

Court in Commonwealth v. Savage, 695 A.2d 820 (Pa. Super. 1997),

noted that the Kine Court “suggested that communications in furtherance

of a fraud would not be privileged in a civil action.” Id. at 824 (emphasis
          3
added).


____________________________________________


3
   The Savage Court held that the fraud exception to § 5924 does not apply
in the criminal context. Id. at 823-24. The Savage Court held that any
such development must come from the legislature. Id. at 824. This Court
recently reaffirmed that holding in Commonwealth v. Davis, 121 A.3d 551
(Pa. Super. 2015) (en banc).



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       Appellee relies on the Kine Court’s use of the phrase “private

communications” to support its argument that the fraud exception applies to

§ 5923. Two observations about the Kine opinion lead us to conclude it is

not dispositive of the question before us.         First, the confidential marital

communications privilege was not at issue in Kine.              The Kine Court

addressed spousal competence as a witness under 28 P.S. § 317, the

predecessor of current § 5924. Kine, 209 A.2d at 3. Second, as we have

explained, the questions at issue in Kine, quoted above, did not seek

disclosure of confidential spousal communications. Thus, the Kine Court’s

statement about confidential private communications was dicta insofar as it

relates to § 5923.

       Lacking direct authority on the civil versions of the spousal testimony

and confidential communications privileges, we turn for guidance to our

Supreme Court’s analysis of the criminal analogues found at 42 Pa.C.S.A.

§§ 5913 and 5914.4 In Commonwealth v. Newman, 633 A.2d 1069 (Pa.

____________________________________________


4
    Section 5913, the criminal analogue of § 5924, provides as follows:

       Except as otherwise provided in this subchapter, in a criminal
       proceeding a person shall have the privilege, which he or she
       may waive, not to testify against his or her then lawful spouse
       except that there shall be no such privilege:

       (1) in proceedings for desertion and maintenance;

       (2) in any criminal proceeding against either for bodily injury or
       violence attempted, done or threatened upon the other, or upon
(Footnote Continued Next Page)


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1993), the Supreme Court addressed whether a wife could refuse to divulge

confidential marital communications under § 5914 even though she did not

have the privilege to refuse to testify under § 5913. The Court held that the

wife could not divulge confidential marital communications even though an

exception to Rule § 5913 vitiated her privilege not to testify against her

husband.5 Id. at 1072. “Even if a husband or wife may be called to

give testimony adverse to his or her spouse, however, he or she is

                       _______________________
(Footnote Continued)

      the minor children of said husband and wife, or the minor
      children of either of them, or any minor child in their care or
      custody, or in the care or custody of either of them;

      (3) applicable to proof of the fact of marriage, in support of a
      criminal charge of bigamy alleged to have been committed by or
      with the other; or

      (4) in any criminal proceeding in which one of the charges
      pending against the defendant includes murder, involuntary
      deviate sexual intercourse or rape.

42 Pa.C.S.A. § 5913.

      Section 5914, the criminal law analogue of § 5923, provides as
follows:

      Except as otherwise provided in this subchapter, in a criminal
      proceeding neither husband nor wife shall be competent or
      permitted to testify to confidential communications made by one
      to the other, unless this privilege is waived upon the trial.

42 Pa.C.S.A. § 5914.
5
  Section 5913, unlike its civil analogue at § 5924, is not a rule of witness
competency. Rather, it creates a privilege whereby one can refuse to testify
against one’s spouse in a criminal proceeding. See Savage, 695 A.2d at
823.



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not competent to testify to confidential communications.”                    Id.

(emphasis added).

      In Commonwealth v. Hancharik, 633 A.2d 1074, 1075 (Pa. 1993),

a companion case decided the same day as Newman, the appellant argued

counsel was ineffective for failing to object to the introduction of confidential

marital communications where his wife was competent to testify under

§ 5913.     As in Newman, the          trial court believed the confidential

communications were admissible under § 5914 because the wife was

competent as a witness pursuant to an exception to § 5913. Id. at 1075.

The Hancharik Court ruled that the exceptions of § 5913 were not

applicable to § 5914.    Id. at 1077.     That outcome, the Court reasoned,

would render § 5914 “entirely superfluous.” Id.

      If a husband or wife is incompetent to testify against the spouse
      at all (section 5913), there is no need to state separately that a
      husband or wife is incompetent to testify to confidential
      communications (section 5914).        Likewise, if the exception
      applies to both rules, then there is no circumstance where the
      confidential communications rule of section 5914 is applicable
      that the competency provision of section 5913 is not.

Id.   The opening clause of § 5914—“Except as otherwise provided in this

chapter”—therefore did not refer to the § 5913 exceptions.          Rather, the

opening clause of § 5914 refers to § 5915 (the civil analogue appears at

§ 5925) whereby a husband or wife can divulge confidential communications

in rebuttal if the spouse attacks his or her character.          Id.; see also

Newman, 633 A.2d at 1072.



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      We believe the analysis in Hancharik and Newman is highly

instructive in this case.   The language of §§ 5914 and 5923 is identical,

except that the former applies “in a criminal proceeding” and the latter

applies “in a civil matter.”   42 Pa.C.S.A. §§ 5914, 5923.      The underlying

policy of both sections—to protect and promote marital harmony—also is

identical. Ultimately, we believe the teachings of Newman and Hancharik

provide persuasive reasons to limit the applicability of the fraud exception to

§ 5924.   Specifically, Newman and Hancharik teach that our General

Assembly has deemed confidential marital communications worthy of special

protection, even in cases where spouses are competent to testify against

each other.   In the criminal context, this Court has held that a husband’s

confession to his wife of his commission of a crime is inadmissible under

§ 5914 even though his wife was competent to testify because the couple

was divorced by the time of trial. Clark, 500 A.2d at 443. The Clark Court

wrote:

      The privilege that protects information privately disclosed
      between husband and wife in the confidence of the marital
      relationship was once described by the United States Supreme
      Court as ‘the best solace of human existence.’       Stein v.
      Bowman, 13 Pet. 209, at 223, 10 L.Ed. 129 (1839) in Trammel
      v. U.S., supra, 446 U.S. at 51, 100 S.Ct. at 913.

Id. at 442. This principle holds true in both criminal and civil cases.

      In summary, Pennsylvania law allows for disclosure of confidential

spousal communications in very limited circumstances, such when the

privilege is waived, per § 5923, or when a witness must do so to defend

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himself or herself from a spouse’s attack on his or her character, per § 5925.

In light of the strong public policy favoring the protection of confidential

marital communications, even where spouses are otherwise competent to

testify against one another, we believe that additional restrictions on the

spousal communications privilege of § 5923, if any, must come from the

General Assembly or from our Supreme Court.

      We now review Mr. Cavanaugh’s deposition transcript and the specific

objections at issue on appeal.   On five occasions during Mr. Cavanaugh’s

deposition, counsel for Appellant and Mr. Cavanaugh objected to a line of

questioning and directed Mr. Cavanaugh not to answer. In the first of these,

Appellee’s counsel questioned Mr. Cavanaugh about a phone call from his

wife, the Appellant:

          [Appellee’s Counsel]:      Okay.     And what          did   she
      communicate to you over the phone that evening?

            [Appellant’s Counsel]: Objection, spousal privilege.

            [Mr. Cavanaugh’s Counsel]: I would instruct my client not
      to answer.

            [Appellee’s Counsel]: In a deposition?

            [Appellant’s Counsel]: Absolutely.

            [Appellee’s Counsel]: Okay.

            [Appellant’s Counsel]: Otherwise, you’ll waive it.

N.T. Deposition, 10/29/14, at 11-12.

      This line of questioning referenced a phone call Mr. Cavanaugh

received from Appellant when she was having a “nervous breakdown” one

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day before she left the Cavanaughs’ marital home. Id. at 10-11. Shortly

before the call from Appellant, Mr. Cavanaugh received a call from a police

officer inquiring about Appellant’s whereabouts.         Id.   A private phone

conversation between a husband and his emotionally distraught wife

presumptively constitutes a confidential marital communication.       Appellee

offers no evidence or argument against the presumption of confidentiality.

The trial court erred in ordering Mr. Cavanaugh to answer this question.

      Next, Appellee asked Mr. Cavanaugh about alleged criminal activity

going on at CAP Glass:

            [Appellee’s Counsel]:    Okay.    In March of 2013, did
      [Appellant] ever tell you of any theft that was going on at CAP
      Glass?

             [Appellee’s Counsel]: Again, spousal privilege.

           [Mr. Cavanaugh’s Counsel]: So I would instruct you not to
      answer.

            [Appellee’s Counsel]:      Before March of 2013, did
      [Appellant] ever tell you of any theft that was going on at CAP
      Glass?

             [Appellant’s Counsel]: Objection.

             [Appellee’s Counsel]: Grounds, please?

             [Appellant’s Counsel]: Spousal privilege.

           [Appellee’s Counsel]:     And you’re directing him not to
      answer?

             [Mr. Cavanaugh’s Counsel]: Yes.

             [Appellee’s Counsel]: Okay.

Id. at 22.


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      A wife’s private disclosure to her husband of illegal activity occurring at

her workplace presumptively is a confidential marital communication. Once

again, Appellee has offered no argument or evidence to overcome that

presumption. The trial court erred in compelling Mr. Cavanaugh to answer

these questions.

      The next contested line of questioning immediately followed the

previous line:

            [Appellee’s Counsel]: After leaving her employment in
      March of 2013, did [co-defendant Tammy L. Coffman] inform
      you of any theft that had taken place at Cap Glass?

               [Appellant’s Counsel]: Same objection.

            [Appellee’s Counsel]: Did Tammy ever communicate to
      you that she was angry at Shawn Pilla for any particular reason?

               [Appellant’s Counsel]: Objection.

               [Appellee’s Counsel]: What grounds on that one?

               [Appellant’s Counsel]: Spousal communication.

               [Appellee’s Counsel]: Okay. Spousal communication.

               [Appellant’s Counsel]: Applies to anything.

            [Appellee’s Counsel]: Okay. All right. I’m going to make
      a note of that one.

Id. at 22-23.     In her brief, Appellant described this line of questioning as

one   in      which   Appellee   “attempted    to   elicit    confidential   spousal

communications between [Appellant] and [Mr. Cavanaugh].”                 Appellant’s

Brief at 7.    We find Appellant’s assertion puzzling.       Appellant’s brief never

elaborates on why it was appropriate to invoke § 5923 to prevent Mr.


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Cavanaugh from divulging information he received from Tammy Coffman.

Inasmuch as § 5923 applies to communications from one spouse to the

other, it does not apply to a communication from Tammy Coffman to Mr.

Cavanaugh.     The trial court correctly ruled that Appellant cannot rely on

§ 5923 to prevent Mr. Cavanaugh from divulging the substance of

communications he received from Tammy Coffman.

     Appellant’s     next   objection    came    during   the   following   line   of

questioning:

           [Appellee’s Counsel]: Do you know whether [Appellant]
     informed authorities that she actually still had a good chunk of
     the money that she had taken from Shawn Pilla and was willing
     to pay that back?

             [Mr. Cavanaugh’s Counsel]: Objection.

             [Appellant’s Counsel]: Objection.

           [Mr. Cavanaugh’s Counsel]: I think it’s been asked and
     answered, actually, because he indicated she didn’t tell him
     anything.

             Mr. Cavanaugh: No.

Id. at 45. Neither counsel specified the nature of the objection here. The

question does not explicitly seek disclosure of a communication between

Appellant and Mr. Cavanaugh. Furthermore, Mr. Cavanaugh answered the

question.    Appellant is incorrect asserting that this line of questioning

implicated § 5923.

     Finally, Appellant objected to the following:

             [Appellee’s Counsel]: Did [Appellant] ever confess to you?


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            [Appellant’s Counsel]: Objection.

           [Appellee’s Counsel]:     Please state for the record the
      grounds.

           [Appellant’s Counsel]:       Same    as   all my objections.
      Spousal privilege.

           [Appellee’s Counsel]:     And you’re directing him not to
      answer?

            [Mr. Cavanaugh’s Counsel]: Yes.

            [Appellee’s Counsel]: Okay.

Id. at 49-50. Appellant’s private confession to her husband, if one occurred,

plainly constitutes a confidential marital communication.     See Clark, 500

A.2d at 443. Appellee offers no argument to rebut the presumption that this

communication was confidential.      Therefore, Appellant is entitled to the

protection of § 5923. The trial court erred in finding otherwise.

      Based on all of the foregoing, we conclude that the trial court erred in

ordering Mr. Cavanaugh to divulge the substance of confidential marital

communications from Appellant, as set forth above.       We reverse the trial

court’s order insofar as it applies to confidential marital communications

between Appellant and Mr. Cavanaugh.         We affirm the order insofar as it

pertained to questions that did not implicate § 5923, as explained above.

      Order affirmed in part and reversed in part.           Case remanded.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2016




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