J-A24027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD GEORGE SCHMIDT, M.D.                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

STEVEN LEE LEBOON AND CASSANDRA
LEBOON

                            Appellants                      No. 3484 EDA 2014


             Appeal from the Order Entered on November 24, 2014
                In the Court of Common Pleas of Bucks County
                       Civil Division at No.: 2013-00951


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                               FILED NOVEMBER 09, 2015

       Steven    LeBoon     (“LeBoon”)1        and   Cassandra   LeBoon   appeal   the

November 24, 2014 order in which the trial court resolved several discovery

motions. We affirm.

       A prior panel of this Court summarized the initial factual history of this

case as follows:

       LeBoon suffered from work related injuries when, on May 6,
       2009, management employees of the Alan McIlvain Company
       attempted to perform the tasks of rank and file workers during
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
      Although     both    Steven   and      Cassandra     LeBoon     are   the
defendants/appellants in this matter, Steven LeBoon’s injury precipitated all
of the litigation in this case. Therefore, we use LeBoon to refer to the
defendants/appellants in the instant litigation and refer directly to Cassandra
LeBoon when relevant.
J-A24027-15


     the course of a labor stoppage. While removing lumber from a
     cutting table, LeBoon injured his right shoulder and later alleged
     injuries to his back and left shoulder. On May 12, 2009, LeBoon
     filed a Workers’ Compensation claim, [in] which LeBoon allege[d]
     Liberty Mutual (his employer’s Workers’ Compensation carrier)
     denied on the basis that LeBoon had no medically documented
     injury. Thereafter, LeBoon consulted his personal physician and,
     relying on his health insurance, determined to undergo surgery
     on June 11, 2009. Informed of the pending surgery, Liberty
     Mutual requested that LeBoon undergo an independent medical
     examination (“IME”).      Thereafter, IMX Medical Management
     Services, acting on Liberty Mutual’s behalf, scheduled the IME
     with Richard George Schmidt, M.D., to take place on June 19,
     2009. Dr. Schmidt is a board-certified orthopedic surgeon.

     Following the examination, Dr. Schmidt completed a Bureau of
     Workers’ Compensation Physician’s Affidavit of Recovery
     attesting that LeBoon was able to return to work. Subsequently,
     Liberty    Mutual   introduced   that   affidavit at   Workers’
     Compensation hearings held on July 8, 2009, and October 14,
     2009.     In addition, Dr. Schmidt testified at a deposition
     convened in conjunction with the Workers’ Compensation
     hearing in October. [Dr.] Schmidt noted that he had examined
     magnetic resonance images of LeBoon’s shoulder, neck, and
     spine and observed post-surgical changes in the shoulder as well
     as degenerative changes in the spine, but saw no acute changes
     or disc herniation.     Although [Dr.] Schmidt conceded that
     LeBoon suffered a work place injury (as LeBoon’s employer had
     also conceded), he opined that the injury had resolved by the
     time he conducted the IME. He described LeBoon’s injuries as a
     transient strain of the shoulders, neck, and lower back and
     suggested that LeBoon’s complaints were indicative of “symptom
     magnification.” [Dr.] Schmidt showed no awareness of LeBoon’s
     operative report, which documented actual tearing in LeBoon’s
     shoulder.

     Following the proceedings, on December 31, 2009, Workers’
     Compensation Judge Bruce K. Doman (“WCJ”) rendered a
     decision granting LeBoon’s claim for Workers’ Compensation
     benefits. In his Findings of Fact in support of the decision, Judge
     Doman found [Dr.] Schmidt’s testimony credible in part, to the
     extent that [Dr.] Schmidt found the work-related injuries of
     LeBoon’s left shoulder and cervical and lumber spines to be
     resolved prior to the date of the IME. The WCJ found [Dr.]
     Schmidt’s testimony not to be credible concerning LeBoon’s right

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J-A24027-15


     shoulder, as it appeared to ignore the diagnostic studies and
     operative reports compiled by LeBoon’s treating physicians. In
     addition, the WCJ accepted documentation of LeBoon’s average
     weekly wage at the time of injury and awarded him
     compensation for total disability to be paid on a monthly basis
     over the remainder of LeBoon’s projected life span.

     Based on the award, LeBoon elected to settle his claim for a
     lump sum payment of $185,000, subject to the terms of a
     Compromise and Release Agreement by Stipulation Pursuant to
     Section 449 of the Workers’ Compensation Act. In paragraph
     18, LeBoon, with the aid of counsel, inserted the following
     language purporting to limit the scope and effect of the
     Agreement:

       This Agreement does not impact in any manner any other
       legal matter or administrative proceeding involving the
       parties. This agreement fully and completely resolves any
       workers’ compensation claim involving the Claimant,
       including the work injury of May 6, 2009.

     Compromise and Release Agreement by Stipulation Pursuant to
     Section 449 of the Workers’ Compensation Act, 5/6/10, at 3 ¶18.

     Following payment of the award, LeBoon commenced [a] civil
     action, pro se, against Liberty Mutual, IMX and Dr. Schmidt,
     alleging tortious conduct surrounding the manner in which each
     had fulfilled its respective role in the evaluation and processing
     of LeBoon’s Workers’ Compensation claim.1 Although LeBoon’s
     Complaint did not differentiate his causes of action by count, it
     did include summary assertions of intentional infliction of
     emotion distress, negligent infliction of emotional distress and
     fraud, all arising from the mishandling of his Workers’
     Compensation claim. [As part of a claim that Dr. Schmidt
     inflicted emotional distress by deviating from the standard of
     care, LeBoon submitted a certificate of merit signed by Theron C.
     Male, Ph.D.] It also specified harm resulting from LeBoon’s loss
     of income during the claim’s disposition process including the
     loss of his home and his car, and his family’s dependency on
     public welfare for sustenance. All defendants denied LeBoon’s
     allegations and each filed preliminary objections in the nature of
     demurrer on the grounds, inter alia, that any conduct otherwise
     actionable in tort was subsumed in the remedy of the Workers’
     Compensation Act. The trial court, the Honorable Clyde W.



                                   -3-
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       Waite, granted the defendant’s respective preliminary objections
       and dismissed LeBoon’s complaint with prejudice.
          1
            LeBoon had previously commenced an action in the
          United States District Court for the Eastern District of
          Pennsylvania naming IMX and Dr. Schmidt as defendants.
          Shortly after commencing that action LeBoon amended the
          complaint, adding Liberty Mutual as a defendant. By order
          of April 18, 2011, the court dismissed LeBoon’s action
          without prejudice.

LeBoon v. Schmidt, IMX Med. Mgmt. Svcs., Inc., & Liberty Mutual Ins.

Co., 2235 EDA 2011, slip. op at 2-5 (Pa. Super. Feb. 28, 2012).

       LeBoon appealed the dismissal of his complaint to this Court, and we

affirmed the trial court on February 28, 2012. LeBoon then filed a petition

for allowance of appeal with our Supreme Court, which was denied on

August 16, 2012.

       On February 13, 2013, Dr. Schmidt filed an initial complaint against

LeBoon. On May 31, 2013, Dr. Schmidt filed an amended complaint in which

he asserted claims of wrongful use of civil proceedings and abuse of process.

Dr. Schmidt also sought counsel fees and an injunction to prevent LeBoon

from filing further lawsuits against Dr. Schmidt in relation to LeBoon’s

workers’ compensation claim, from issuing subpoenas for Dr. Schmidt’s

testimony or documents related to the workers’ compensation claim, and

from contacting Dr. Schmidt.2          As suggested by the foregoing history, the


____________________________________________


2
     On March 12, 2013, LeBoon filed a new federal lawsuit against Dr.
Schmidt, which was dismissed for failure to state a claim.



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filing of the complaint initiated a flurry of activity and over two hundred

docket entries have been made in the intervening time.

      The trial court summarized the most recent procedural history of this

case as follows:

      On November 20, 2014, [the trial court] held a hearing to
      resolve ten discovery motions filed by both parties to this
      litigation. [The trial court] then entered an Order on November
      24, 2014 (“the November 24th Order”) ruling on each discovery
      motion from the November 20th hearing. As is relevant to this
      Appeal, the November 24th Order: (i) granted [Dr. Schmidt’s]
      motion to compel Theron C. Male, Ph.D. to testify regarding his
      psychological care and treatment of [LeBoon]; (ii) granted [Dr.
      Schmidt’s] motion to compel Steven Goldflam to produce
      [LeBoon’s] tax returns for the years 2007-2013; (iii) granted
      [Dr. Schmidt’s] motion to overrule [LeBoon’s] objections to over
      twenty interrogatories; (iv) granted [Dr. Schmidt’s] motion to
      overrule [LeBoon’s] objections to seventeen requests for
      production of documents; and (v) granted [Dr. Schmidt’s]
      motion to compel both [LeBoon and Cassandra LeBoon] to
      appear for a deposition.

      On November 26, 2014, [LeBoon] filed a Notice of Appeal from
      that Order. . . .

Trial Court Opinion (“T.C.O.”), 12/26/2014, at 1 (unnumbered).

      The trial court did not order, and LeBoon did not file, a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a).

      LeBoon raises the following issues for review:

      1. Were [LeBoon’s] rights under 45 CFR 1644.512(e), Pa.R.C.P.
         4033.1, Pa.R.C.P. 4011, Pa.R.A.P. 313, 42 Pa.C.S.A. § 5929
         and 42 Pa.C.S.A. § 5944 violated due to [the trial judge’s]
         err[or] when he granted [Dr. Schmidt’s] Motion to Compel
         Theron C. Male to testify about his psychological care and
         treatment of [LeBoon]?



                                    -5-
J-A24027-15


      2. Were [the LeBoons’] rights under Pa.R.C.P. 4003.1, 23 USC
         § 7525, IRSRRA’98, The Privacy Act of 1974, Pa.R.A.P. 313,
         and 42 Pa.C.S.A. § 5928 violated due to [the trial judge’s]
         err[or] when he granted [Dr. Schmidt’s] Motion to Compel
         Steve Goldflam produce [LeBoon’s] tax returns for the years
         2007-2013?

      3. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
         Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, and
         Pa.R.A.P. 313 violated due to [the trial judge’s] err[or] when
         he granted [Dr. Schmidt’s] Motion Overrule [the LeBoons’]
         Objections to Interrogatories?

      4. Were [the LeBoons’] rights under 42 Pa.C.S.A § 5923, 42
         Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
         Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
         judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
         Overrule [the LeBoons] Objections to Requests for Production
         of Documents?

      5. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
         Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
         Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
         judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
         Compel the deposition of [LeBoon]?

      6. Were [the LeBoons’] rights under 42 Pa.C.S.A. § 5923, 42
         Pa.C.S.A. § 5924, Pa.R.C.P. 4003.1, Pa.R.C.P. 4011, 42
         Pa.C.S.A. § 5928 and Pa.R.A.P. 313 violated due to [the trial
         judge’s] err[or] when he granted [Dr. Schmidt’s] Motion to
         Compel the deposition of Cassandra LeBoon?

      7. Were [the LeBoons’] rights under rules of Discovery violated
         due to [the trial judge’s] err when he denied access to [Dr.
         Schmidt’s] financial tax returns, even after he stated in the
         Amended Complaint that [Dr.] Schmidt “has been forced to
         expend time at the expense of his medical practice”?

LeBoon’s Brief at 6-7 (citations modified).

      We first must determine whether we have jurisdiction. LeBoon asserts

that the order is a collateral order pursuant to Pa.R.A.P. 313 and, therefore,




                                     -6-
J-A24027-15



we have jurisdiction. However, LeBoon provides no argument in support of

his assertion.

      Addressing this issue, we have stated:

      “[I]n general, discovery orders are not final, and are therefore
      unappealable.” Jones v. Faust, 852 A.2d 1201, 1203 (Pa.
      Super. 2004). However, “discovery orders involving privileged
      material are nevertheless appealable as collateral to the principal
      action” pursuant to Pa.R.A.P. 313 (“Collateral Orders”). Id.
      Rule 313(a) states that “[a]n appeal may be taken as of right
      from a collateral order of [a] . . . lower court.” Pa.R.A.P. 313(a).

         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(b). “A discovery order is collateral only when it is
      separate and distinct from the underlying cause of action.”
      Feldman v. Ide, 915 A.2d 1208, 1211 (Pa. Super. 2007).

      As this Court explained recently:

         Prior to the decision of the Pennsylvania Supreme Court in
         Ben v. Schwartz, 729 A.2d 547 (Pa. 1999), Pennsylvania
         courts did not often entertain interlocutory appeals from
         discovery orders, unless the discovery order was not
         related in any way to the merits of the action itself. In
         Schwartz, the Pennsylvania Supreme Court revised this
         rule and held that an appeal from a discovery order raising
         a question of the application of a privilege is separable
         from the underlying issue, so long as the issue of privilege
         may be addressed by an appellate court without analysis
         of the underlying issue. Schwartz, 729 A.2d at 551–52.

      Castellani v. Scranton Times, L.P., 916 A.2d 648, 652 (Pa.
      Super. 2007).

T.M. v. Elwyn, Inc., 950 A.2d 1050, 1056-57 (Pa. Super. 2008) (some

citations modified; others omitted).


                                       -7-
J-A24027-15



      As stated above, normally, we first would determine whether the order

appealed is a collateral order. However, LeBoon has asserted his arguments

about privilege in the merits portion of his brief and intertwined the

jurisdictional and merits issues. Therefore, we examine each issue in turn to

determine whether the order is collateral or interlocutory and then discuss

the merits if we have the jurisdiction to do so.

      In his first issue, LeBoon asserts that the trial court erred in permitting

Dr. Male to be deposed regarding LeBoon’s treatment. LeBoon argues that

the psychologist-patient privilege pursuant to 42 Pa.C.S.A. § 5944 prevents

disclosure of any information regarding treatment. He also asserts that he

has not waived any Health Insurance Portability and Accountability Act of

1996 (“HIPAA”) protection. LeBoon’s Brief at 14-15.

      We have previously found similar claims to be reviewable as collateral

orders. See Gormley v. Edgar, 995 A.2d 1197, 1201 (Pa. Super. 2010).

Therefore, we proceed to the merits.

      Our standard of review is well-settled.      “Generally, in reviewing the

propriety of a discovery order, our standard of review is whether the trial

court committed an abuse of discretion. However, to the extent that we are

faced with questions of law, our scope of review is plenary.” Id. at 1202.

      In reviewing a claim of privilege in mental health records pursuant to

the Mental Health Procedures Act, our Supreme Court stated that “[i]t must

be emphasized that evidentiary privileges have been viewed by this Court to

be in derogation of the search for truth, and are generally disfavored for this

                                      -8-
J-A24027-15



reason. . . .” Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1262 (Pa.

2014). In that case, the Court held that “a patient waives his confidentiality

protections under the MHPA where, judged by an objective standard, he

knew or reasonably should have known his mental health would be placed

directly at issue by filing the lawsuit.”    Id.    In Gormley, we affirmed the

trial court’s decision to order disclosure of mental health records, despite the

plaintiff’s claim of psychologist-patient privilege, when the plaintiff put her

mental health at issue in the case by claiming anxiety as a result of an

accident.   Gormley, 995 A.2d at 1206; see also Rost v. State Bd. of

Psychology, 659 A.2d 626, 629 (Pa. Cmwlth. 1995) (“Waiver of the

privilege may occur where the client places the confidential information at

issue in the case.    It may also be waived where there is no longer an

expectation of privacy regarding the information because the client has

made it known to third persons.”) (citations omitted).              Here, in the

underlying case, by claiming infliction of emotional distress, LeBoon firmly

put his mental health at issue. Therefore, he waived any claim to privilege.

      Insofar as LeBoon has asserted a privilege pursuant to HIPAA, he cites

“45 CFR 1644.512(e).”     Although that section does not exist, we presume

that LeBoon intended to cite 45 C.F.R. § 164.512(e). The section provides

that “a covered entity may disclose protected health information in the

course of any judicial . . . proceeding” “in response to an order of a court . .

. provided that the covered entity disclosed only the protected health

information   expressly    authorized       by     such   order.”    45   C.F.R.

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J-A24027-15



§ 164.512(e)(1)(1). Here, the trial court issued such an order directing Dr.

Male to testify regarding his treatment of LeBoon.             Dr. Male can do so

without violating HIPAA.        LeBoon has raised no other HIPAA privilege and

has, therefore, waived any other that he might have raised. The trial court

did not abuse its discretion in ordering this discovery.

       LeBoon next contends the trial court erred in ordering his bookkeeper

to provide copies of his tax returns.          LeBoon cites a variety of statutes to

assert a privilege for those returns. LeBoon’s Brief at 16-18.

       However, none of the “privileges” LeBoon asserts is even remotely

relevant. He cites the attorney-client privilege, but no attorney is involved

in this case. He cites two general rules of discovery, Pa.R.C.P. 4003.1 and

4011, neither of which involves a privilege.           He cites the collateral order

rule, Pa.R.A.P. 313, without any explanation as to how that would assert a

privilege. He asserts a federal privilege between a taxpayer and a federally

authorized tax practitioner, 26 U.S.C. § 7525, although Mr. Goldflam has not

been alleged to be a federally authorized tax practitioner.3 LeBoon purports

to find a privilege in other federal laws without citation to any statute or

decisional authority.     Nothing LeBoon cites provides a privilege that would

protect his tax returns. As no actual assertion of privilege has been made,
____________________________________________


3
      Under federal law, a certified public accountant may practice before
the Internal Revenue Service. See 5 U.S.C.A. § 500. The record reveals
that Mr. Goldflam is not an accountant, let alone a certified public
accountant.



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J-A24027-15



there is no right that is too important to be denied review. Therefore, the

order to compel the production of the tax returns is not a collateral order,

and we do not have jurisdiction to reach its merits.

       In the next four issues, LeBoon asserts that the trial court erred by

failing   to   recognize    that   a    spousal    privilege   precludes   answers   to

interrogatories, production of documents, and the taking of LeBoon’s and

Cassandra LeBoon’s depositions. We first address jurisdiction.

       As with other claims of privilege, the privilege would be lost if review

were postponed until after a final judgment. The spousal privilege has long

been recognized in our law and serves an important public policy of

preserving marital harmony.            See Commonwealth v. Mattison, 82 A.3d

386, 394 (Pa. 2013) (“The spousal confidential communications privilege has

its roots in common law and ‘is based upon considerations of public policy,

as in the case of husband and wife to preserve the peace, harmony and

confidence’ in their relations.”). In this case, the privilege also is separable

from the underlying issue of wrongful use of judicial process.4             Thus, Rule

313 is satisfied.


____________________________________________


4
       But see Fid. Nat. Title Ins. Co. of New York v. United Settlement
Servs., Inc., 924 A.2d 1270, 1272 (Pa. Super. 2007) (holding that spousal
privilege was not separable in case alleging that husband and wife engaged
in fraud, because the spousal privilege does not extend to communications
that perpetrate a fraud, and the court would have to determine whether
fraud was committed to determine whether the privilege applied).




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J-A24027-15



       The two privileges cited by LeBoon are as follows:

       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.

       In a civil matter neither husband nor wife shall be competent or
       permitted to testify against each other.

42 Pa.C.S.A. § 5924(a).

       A communication does not qualify as a confidential communication

when it has been divulged to a third party.        Commonwealth v. G.Y., 63

A.3d 259, 267 (Pa. Super. 2013).5 “The determination of what constitutes a

confidential communication depends upon whether the defendant has a

reasonable expectation that the communication will remain confidential.”

Mattison, 82 A.3d at 394. Additionally, our Supreme Court has held that,

while communication can be non-verbal, observations of conduct without

“the attribution of a message” would not be a communication between

spouses. Id. at 395.

       We also have recognized that the testimonial privilege requires that

the spouse must be called upon to testify against the other for it to apply.


____________________________________________


5
      There are few cases addressing sections 5923 and 5924. Therefore,
we look to the cases that construed the substantially similar equivalents in
criminal proceedings, 42 Pa.C.S.A. §§ 5913 and 5914.



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J-A24027-15



No such privilege exists when the testimony is not adverse to the other

spouse. Com. ex rel. Platt v. Platt, 404 A.2d 410, 413 (Pa. Super. 1979).

      With   this   background   in   mind,    we   address   each   of   LeBoon’s

contentions in turn.      Regarding interrogatories, LeBoon asserts that

Cassandra LeBoon has no independent knowledge about the case and that

the only answers that she could supply would be known to her through

confidential communications with LeBoon. LeBoon’s Brief at 19-21. LeBoon

makes the same argument with respect to the production of documents. Id.

at 22-24.

      In his written answers, LeBoon only claimed spousal privilege in

response to one of more than twenty disputed interrogatories. Similarly, he

did not raise that privilege as a response to any additional interrogatories at

argument.    LeBoon also did not assert a spousal privilege to any of the

disputed document requests, and we can find no such assertion in the

hearing transcript.   Therefore, because the privilege was not raised as an

issue before the trial court, the issue is waived on appeal. See Majorsky v.

Douglas, 58 A.3d 1250, 1267 (Pa. Super. 2012); Pa.R.A.P. 302(a).

      For the interrogatory in which the issue was preserved, the privilege is

inapplicable. That    interrogatory   asked    whether   an attorney provided

assistance to the LeBoons in the underlying suit. Because this would involve

a third party, no spousal privilege would apply.

      LeBoon next contends that the trial court erred in granting Dr.

Schmidt’s motions to compel LeBoon’s and Cassandra LeBoon’s depositions.

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J-A24027-15



LeBoon argues that the deposition would require him to divulge confidential

communications with Cassandra LeBoon.          LeBoon contends that the trial

court ordered him and Cassandra LeBoon to answer all questions “regardless

of [the] privilege asserted.” LeBoon’s Brief at 26, 30. LeBoon also argues

that Cassandra LeBoon cannot be forced to testify against her husband, so

anything elicited in her deposition would be inadmissible in court.   LeBoon’s

Brief at 25-32.

      LeBoon and Cassandra LeBoon cannot assert a blanket spousal

privilege that entirely prevents Dr. Schmidt from questioning them.         The

privilege only applies to confidential communications between spouses. It is

not reasonable to suggest that every question that Dr. Schmidt would ask

would elicit a confidential communication.     Additionally, the trial court did

not preclude the LeBoons from asserting a spousal privilege during the

deposition. The trial court stated:

      You will appear for deposition. Mrs. LeBoon will appear for
      deposition.    If there is an objection to a specific question
      regarding a communication between spouses or against another
      spouse, you can make that objection, you can provide the
      answer, and then the trial judge will determine whether or not it
      will proceed further.

Notes of Testimony, 11/20/2014, at 68-69.          It is clear that the court

specifically permitted the LeBoons to object to specific questions, subject to

the trial court’s ruling upon those objections, but not to avoid a deposition

entirely based upon a blanket assertion of spousal privilege. Thus, no relief

is due at this time.

                                      - 14 -
J-A24027-15



      As to LeBoon’s final objection, our rules state that “[i]t is not

ground[s] for objection that the information sought will be inadmissible at

the trial if the information sought appears reasonably calculated to lead to

the discovery of admissible evidence.”       Pa.R.C.P. 4003.1(b).   Therefore, it

does not matter if Cassandra LeBoon’s deposition testimony would not be

admissible at trial, provided that it reasonably could lead to admissible

evidence. Because Cassandra LeBoon was a party to the underlying lawsuit

and was involved in events leading to the current litigation, it is reasonable

to anticipate that her testimony, even if not admissible, would lead to the

discovery of admissible evidence. Again, a blanket claim of privilege cannot

shield Cassandra LeBoon from being deposed, although she certainly may

assert a privilege in response to individual questions as the trial court

acknowledged. Because the trial court correctly disposed of the assertions

of spousal privilege that were raised before it, there was not abuse of

discretion.

      Finally, LeBoon asserts that the trial court erred in failing to compel

Dr. Schmidt to turn over Dr. Schmidt’s tax returns. However, LeBoon does

not argue that any privilege applies to this issue. See LeBoon’s Brief at 33-

34. Because there is no privilege at issue, this is not a collateral issue and

we do not have jurisdiction to review its merits.

      Order affirmed.




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J-A24027-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




                          - 16 -
