J. A19025/18
                            2019 PA Super 288



LESLEY COREY, AS ADMINISTRATRIX        :    IN THE SUPERIOR COURT OF
OF THE ESTATE OF JOSEPH COREY,         :          PENNSYLVANIA
AND LESLEY COREY, IN HER OWN           :
RIGHT                                  :
                                       :
                  v.                   :
                                       :
WILKES BARRE HOSPITAL COMPANY,         :
LLC D/B/A WILKES-BARRE GENERAL         :
HOSPITAL EMERGENCY DEPARTMENT          :
AND J. CHARLES LENTINI, M.D.           :
                                       :
                  v.                   :
                                       :
PENNSYLVANIA PHYSICIANS                :
SERVICES, LLC                          :         No. 1980 MDA 2017
                                       :
APPEAL OF: LESLEY COREY                :


            Appeal from the Order Entered November 20, 2017,
             in the Court of Common Pleas of Luzerne County
                      Civil Division at No. 2015-07551


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                Filed: September 23, 2019

     Lesley Corey, as administratrix of the Estate of Joseph Corey, and

Lesley Corey, in her own right, appeals from the order granting the motions

of Wilkes Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital

Emergency Department and J. Charles Lentini, M.D. (collectively, “WBH”),

ordering the production of certain privileged documents and directing

appellant to submit to a second deposition. We affirm.
J. A19025/18

     The trial court set forth the following:

           [O]n November 25, 2015, [appellant] filed a
           Complaint alleging injuries relating to medical care
           provided    to   [her   husband,]     Joseph   Corey
           [(“decedent”)] for wrongful death, a survival action,
           loss of consortium, and corporate negligence.

           As noted above, [appellant] asserted a loss of
           consortium claim in the pending civil matter. The
           Luzerne County Court of Common Pleas Docket
           indicates that [appellant] filed a Divorce Complaint
           against [decedent] on February 5, 2013. . . . In the
           Divorce Complaint[, appellant] averred that the
           marriage was irretrievably broken pursuant to
           [23 Pa.C.S.A.] § 3301(c); two year separation
           pursuant to § 3301(d); and indignities pursuant to
           § 3301(a)(6) among other claims. A Counterclaim
           was filed by [decedent] on April 1, 2013 and included
           irretrievable breakdown and fault divorce (indignities)
           among other claims. . . . During the time frame after
           the divorce action was filed, [decedent] passed away
           on August 11, 2013. The divorce action was active
           approximately six (6) months from the time of filing
           until the date of [decedent]’s death.

           From the early stages of discovery, [WBH] challenged
           the loss of consortium claim. On December 15, 2015,
           preliminary objections were filed including an
           objection to strike [appellant]’s claim for loss of
           consortium.     On July 21, 2016, the preliminary
           objection was overruled as premature. Thereafter,
           throughout the course of proceedings, [WBH]
           continued to verbally raise the request to dismiss the
           loss of consortium claim.

           In addressing the loss of consortium claim, subpoenas
           were issued by [WBH] for divorce records and on
           January 5, 2017, [appellant] filed objections to [the]
           Notice of Intent to Serve Subpoenas to [Brian J. Cali,
           Esq., appellant’s divorce counsel,] and [Jonathan S.
           Comitz, Esq., decedent’s divorce counsel].         On
           February 8, 2017, an Order was filed granting the



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          Motion to Strike Objections filed by [WBH] and
          ordering counsel to respond within twenty (20) days.

          Thereafter, on February 24, 2017, objections to
          subpoenas were filed by Attorney Comitz and
          Attorney Cali.    [WBH] filed a Motion to Strike
          Objections to Subpoenas by Attorneys Comitz and Cali
          on March 9, 2017. A hearing was conducted wherein
          Comitz Law Firm and Brian Cali participated as to the
          divorce records and an order was issued on April 11,
          2017 wherein the motion to strike objections to
          subpoenas was granted; the motion for sanctions was
          denied; and the subpoena for divorce records was to
          be answered within thirty (30) days. Attorneys Cali
          and Comitz provided documents regarding the divorce
          matters that were non-privileged to the parties in this
          action [and a privilege log].

          On May 3, 2017, [WBH] filed a Motion to Compel the
          production of documents enumerated in the privilege
          log prepared by [Attorney Cali]. A hearing was
          conducted and an Order was issued on June 6, 2017
          wherein Attorney Cali was directed to provide the
          court with the privilege log and documents for an
          in[ ]camera review.

          It should be noted that [appellant] did not specifically
          object or file an appeal regarding the June 6, 2017
          order wherein the court received and began the
          in[ ]camera review of the privilege log submitted by
          [appellant’s divorce counsel].[Footnote 2] The only
          response by [appellant’s] counsel at that time was as
          follows: “I have one limited role here on this issue and
          that is to confirm that [appellant] has not and will not
          waive the attorney-client privilege[.”] Accordingly,
          there was no objection, or appeal to the in[ ]camera
          review raised at that time.

                [Footnote 2]     In the current appeal[,
                appellant] is arguing that an in[ ]camera
                review of the privileged documents is
                error. Again, [appellant] did not object
                nor did [appellant] request appellate



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                review at the issuance of the June 6, 2017
                order.

          After receipt of non-privileged documents, [WBH] filed
          a Notice of Deposition to [appellant], arguing that the
          divorce records provided reflected significant
          inconsistencies in the prior deposition testimony of
          [appellant].[Footnote 3] [Appellant] objected to the
          second deposition of [appellant] arguing that she was
          questioned extensively regarding the divorce
          proceedings over the course of the initial five (5) hour
          deposition. A hearing on this issue was conducted on
          August 17, 2017 and the matter was taken under
          advisement. Thereafter, on October 11, 2017[, WBH]
          filed motions for partial Summary Judgment, which
          included dismissal of the loss of consortium claims.

                [Footnote 3] [Appellant] was initially
                deposed in this matter on February 3,
                2017 prior to the receipt of the
                non-privileged divorce documents.

          A hearing was scheduled for November 20, 2017
          regarding the partial summary judgments. Prior to
          addressing the partial summary judgment the Court
          addressed the outstanding matter of the in[ ]camera
          review of the divorce privilege log and the second
          deposition of [appellant] since these issues were
          indisputably connected to the loss of consortium claim
          and the pending partial summary judgment of that
          claim.

          The Court began oral argument by inquiring if
          [appellant], after review and release of the
          non-privileged documents in regard to the divorce,
          was continuing to pursue the loss of consortium claim.
          [Appellant’s counsel] indicated that they still intended
          to pursue the claim.

          At that time, the Court noted, “As I have said
          repeatedly, ordinarily an attorney-client privilege
          maintains the utmost authority that is rarely if at any
          time called into question.” The Court further noted
          the basis of the loss of consortium claim directly


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            reflects the status of the marriage at the time of
            [decedent]’s death. Further the Court specifically
            stated, “Each of these documents are relevant and
            discoverable because they were placed into evidence
            by [appellant] in seeking her loss of consortium claim
            and the elements that are contained within the loss of
            consortium claim.”

            An order was issued on November 20, 2017 indicating
            that the documents contained in the privilege log are
            relevant and discoverable, thereby granting the
            Motion to Compel the Production of Documents
            Numbered (4), (6), (7), (8), (10), (11), (12), (13),
            (14), and (15)[Footnote 4] of the Privilege Log
            prepared by [appellant’s divorce counsel].[1] The
            Motion of [WBH] to Strike [appellant]’s Objections to
            the Deposition of [appellant] and for Leave of Court to
            Conduct [a] Second Deposition of [appellant] was also
            granted.

                  [Footnote 4] The privileged documents
                  that were released pursuant to the
                  November 20, 2017 order were not filed
                  of record to protect the privacy of
                  [appellant]. In correspondence provided
                  to counsel, the privileged documents were
                  provided indicating if there was an
                  objection, counsel should notify the court.
                  For the purposes of this appeal, the
                  privileged     documents       are    filed
                  simultaneously under separate order and
                  sealed.

            Thereafter, on November 27, 2017, [WBH] filed a
            Motion for Contempt of Court and Sanctions Directed
            to [appellant’s counsel] for Failure to Comply with [the
            trial court’s] Order dated November 20, 2017. On

1The documents at issue in this appeal were identified in correspondence from
Attorney Cali’s office to counsel for Wilkes Barre Hospital Company, LLC d/b/a/
Wilkes-Barre General Hospital Emergency Department as eight emails
appellant sent to her divorce counsel between May 8, 2013 and August 14,
2013, and one memorandum prepared by appellant and contained in divorce
counsel’s file dated May 14, 2013. (Correspondence, 4/28/17.)


                                     -5-
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              December 4, 2017, [appellant] filed an Answer to
              [WBH]’s Motion for Sanctions which included cross
              motions to disqualify [the trial c]ourt and a motion to
              vacate the [trial] court’s Order dated November 20,
              2017. A hearing was held on December 6, 2017 in
              which [WBH]’s Motion for Contempt of Court and
              Sanctions was taken under advisement and
              [appellant]’s cross motion to disqualify the [trial
              c]ourt was denied. [Appellant]’s cross motion to
              vacate the Order dated November 20, 2017 was
              dismissed.

              On December 15, 2017, [appellant] filed [a] Motion
              for Reconsideration of the Order of November 20,
              2107 and a separate Motion for Reconsideration of the
              Order of November 20, 2017 and All Other Orders
              Which    Pertain   to   Attorney/Client   Privileged
              Communication.     The motions for reconsideration
              were deemed moot based upon the appeal filed by
              [appellant].

Trial court opinion, 4/11/18, at 1-6 (citations omitted; footnote 1 omitted).

        Appellant filed a timely notice of appeal.       The trial court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial court

then filed its Rule 1925(a) opinion.

        Appellant raises the following issues for our review:2

              [1.]   Does Pennsylvania recognize a Loss of
                     Consortium exception to the attorney-client
                     privilege, in the manner determined by the trial
                     court, in overruling the objections of [appellant]
                     and the law firms involved in a previous divorce
                     action based upon the attorney-client privilege
                     and their obligations pursuant to the Rules of
                     Professional Conduct?


2   For ease of disposition, we have reordered appellant’s issues.


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             [2.]   Did the trial court commit reversible error by
                    conducting an in camera review and
                    subsequently ordering production of confidential
                    attorney-client communications, when such
                    communications were clearly protected by the
                    attorney-client   privilege as    codified    at
                    42 Pa.C.S.A. [§] 5928?

             3.     Did the trial court abuse its discretion by
                    directing [appellant] to present herself for a
                    second deposition and questioning based upon
                    confidential      communications     between
                    [appellant] and her attorneys, when such
                    communications were clearly protected by the
                    attorney-client privilege?

Appellant’s brief at 12.

      At the outset, we note that on January 17, 2018, WBH filed with this

court a motion to quash this appeal as interlocutory.         Appellant filed a

response.    This court then entered an order denying the motion without

prejudice to WBH’s right to raise appealability with the merits panel. WBH

raises the appealability issue in its brief.

      Because the appealability of an order is jurisdictional, our standard of

review is de novo, and our scope of review is plenary. Rae v. Pennsylvania

Funeral Directors Ass’n, 977 A.2d 1121, 1126 n.8 (Pa. 2009); Knopick v.

Boyle, 189 A.3d 432, 437 (Pa.Super. 2018). “An appeal may be taken only

from a final order unless otherwise permitted by statute or rule.”      Carbis

Walker, LLP. v. Hill, Barth & King, LLC, 930 A.2d 573, 577 (Pa.Super.

2007) (citation omitted).      Moreover, this court “will not provide interim

supervision of discovery proceedings conducted in connection with litigation



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pending in the several trial courts. In the absence of unusual circumstances,

we will not review discovery or sanction orders prior to a final judgment in the

main action.” Knopick, 189 A.3d at 436 (citations omitted). It is well settled,

however, that

            [c]ollateral orders are one exception to this general
            rule. Pa.R.A.P. 313(a). The collateral order doctrine
            allows for immediate appeal of an order which: (1) is
            separable from and collateral to the main cause of
            action; (2) concerns a right too important to be denied
            review; and (3) presents a claim that will be
            irreparably lost if review is postponed until final
            judgment in the case.

Carbis Walker, 930 A.2d at 577 (case law citation omitted).

      Generally, a discovery order that raises a “colorable claim of

attorney-client” privilege may be appealed immediately under Rule 313.

Gocial v. Indep. Blue Cross, 827 A.2d 1216, 1220 (Pa.Super. 2003). The

Supreme Court of Pennsylvania, however, has held that “the collateral order

rule’s three-pronged test must be applied independently to each distinct legal

issue over which an appellate court is asked to assert jurisdiction pursuant to

Rule 313.” Rae, 977 A.2d at 1130.

      Here, appellant’s challenge to the November 20, 2017 order requiring

her to disclose the communications identified in the privilege log and submit

to a second deposition satisfies the requirements of the collateral order

doctrine. First, appellant’s claim of attorney-client privilege is separable from

and collateral to appellant’s medical malpractice action. Second, appellant’s

claim of attorney-client privilege to protect communications from compelled


                                      -8-
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disclosure concerns a right too important to be denied review. Finally, the

claim presents issues that would be irreparably lost if review is postponed until

final judgment; specifically, compelled disclosure of documents alleged to be

privileged. See Pa.R.A.P. 313(a). Therefore, we decline to quash this appeal.3

See Gocial, 827 A.2d at 1220.

            Whether the attorney-client privilege or the work
            product doctrine protects a communication from
            disclosure is a question of law. This Court’s standard
            of review over questions of law is de novo, and the
            scope of review is plenary. Our review of a discovery
            order, . . . requires the application of an abuse of
            discretion standard.

Saint Luke’s Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 (Pa.Super.

2014) (citations and quotation marks omitted).

      The attorney-client privilege provides:

            In a civil matter counsel shall not be competent or
            permitted to testify to confidential communications
            made to him by his client, nor shall the client be
            compelled to disclose the same, unless in either case
            this privilege is waived upon the trial by the client.




3 We are not convinced by WBH’s assertion that the trial court’s June 6, 2017
order was immediately appealable under Rule 313. As noted below, the
attorney-client privilege is not absolute and often requires the trial court to
review the materials in camera to determine whether the privilege applies
and whether disclosure is appropriate. Therefore, a claim of privilege would
not be irreparably lost until the court completed its review.              See
Pa.R.A.P. 313.

We also find no binding authority for WBH’s suggestion that the alleged failure
to take an immediate appeal of an order requiring an in camera review waives
a party’s right to appeal a subsequent order directing disclosure of the
allegedly privileged materials to another party.


                                      -9-
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42 Pa.C.S.A. § 5928. The attorney-client privilege exists to

           encourage clients to provide information freely to their
           attorneys to allow the attorney to give sound and
           informed advice to guide their clients’ actions in
           accordance with the law. As the privilege encourages
           clients to speak openly with their counsel,
           [Pennsylvania courts] recognize that in many cases,
           the privileged communications kept from the court do
           not really represent a loss of evidence since the client
           would not have written or uttered the words absent
           the safeguards of the attorney-client privilege. We
           are further cognizant that to attain the privilege’s
           goals, the attorney and client must be able to predict
           with some degree of certainty whether particular
           discussions will be protected. An uncertain privilege
           . . . is little better than no privilege at all.

           Our Supreme Court has noted the ongoing tension
           between the two strong, competing interests-of-
           justice factors in play - namely - the encouragement
           of trust and candid communication between lawyers
           and their clients, and the accessibility of material
           evidence to further the truth-determining process.
           Regarding the latter interest, our Supreme Court has
           explained as follows.

                 Evidentiary privileges are not favored.
                 Exceptions to the demand for every man’s
                 evidence are not lightly created nor
                 expansively construed, for they are in
                 derogation of the search for truth. Thus,
                 courts     should    accept    testimonial
                 privileges only to the very limited extent
                 that permitting a refusal to testify or
                 excluding relevant evidence has a public
                 good     transcending     the     normally
                 predominant principle of utilizing all
                 rational means for ascertaining the truth.

           The privilege exists only to aid in the administration
           of justice, and when it is shown that the interests of
           the administration of justice can only be frustrated by



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            the exercise of the privilege, the trial judge may
            require that the communication be disclosed.

Red Vision Sys. v. Nat’l Real Estate Info. Services, L.P., 108 A.3d 54,

61-62 (Pa.Super. 2015) (internal citations, brackets, and quotation marks

omitted).

      Appellant first contends that the trial court erred in finding a loss of

consortium exception to the attorney-client privilege.

      Our supreme court has long recognized that “a loss of consortium claim

includes a claim for loss of sexual relations. Consortium is defined as ‘the

legal right of one spouse to the company, affection, and assistance of and to

sexual relations with the other.’” Tucker v. Phila. Daily News, 848 A.2d

113, 127 (Pa. 2004) (citation omitted). Consortium has more generally been

defined as “[c]onjugal fellowship of husband and wife, and the right of each

to the company, society, co-operation, affection, and aid of the other in every

conjugal relation.” Id. (citations omitted). Therefore, to recover on a loss of

consortium claim, the spouse who brings the claim must demonstrate an

injury to the marital relationship that deprives him or her of the conjugal

fellowship, company, society, cooperation, affection, and sexual relations that

the spouses shared prior to the injury and that but-for the injury, the two

would continue to share.

      Where, as here, the alleged marital injury is suffered during the

pendency of a divorce, the spouse bringing the claim has placed the marital

relationship at issue because in order to prove a loss of consortium, the


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divorcing spouse must first prove the existence of consortium.             Appellant

cannot hide behind the attorney-client privilege to protect communications

she had with her divorce attorney when it was appellant who placed her

marital relationship, and consequently, the state of the divorce, at issue by

including a claim for loss of consortium in her complaint. To do so would

frustrate the administration of justice by giving appellant an unfair advantage

and by prejudicing WBH’s defense of the claim.            Therefore, the trial court

properly   exercised   its   discretion     when   it   ordered   disclosure   of   the

communications.

      Appellant’s second and final claims are dependent upon a finding that

the attorney-client privilege protects the communications between appellant

and her divorce counsel regarding appellant’s and decedent’s divorce.

Because the trial court properly found otherwise, we need not address these

claims.

      Order affirmed. Case remanded. Jurisdiction relinquished.



      Gantman, P.J. joins this Opinion.

      Nichols, J. files a Concurring and Dissenting Opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 09/23/2019




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