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.                             :
                                               :
                                               :   No. 1980 MDA 2017
    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                              :
                                               :
                                               :
    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(s):
                                2015-07551


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

CONCURRING AND DISSENTING OPINION BY NICHOLS, J.:

                                                      Filed: September 23, 2019

       I agree with the majority opinion on many of the issues discussed in this

appeal.1 However, I am constrained to disagree with the specific application

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1 Specifically, I join the majority’s conclusions that this Court has jurisdiction
to consider the trial court’s order requiring disclosure of materials that
Appellant claims are subject to the attorney-client privilege. I also agree that
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of the “at-issue” exception to the attorney-client privilege under the

circumstances of this case.

       Briefly, it bears repeating that Appellant commenced the instant against

WBH for wrongful death, survival, and loss of consortium, among other claims

related to the death of her husband (the decedent). However, approximately

six months before the decedent’s death, Appellant commenced a divorce

action against the decedent.

       Of particular relevance to this matter, WBH had the following

information in its possession when it sought the materials at issue in this

appeal. First, Appellant filed for divorce in February 2013, and the decedent

filed a counter-claim.        See WBH’s Mot. to Strike Appellant’s Objs. to

Subpoenas, 12/6/16, at ¶¶ 4-6. There was no dispute that Appellant and the

decedent each alleged an irretrievable breakdown in their marriage and

averred they were living separate and apart for the two years before their

divorce filings.    See id.      Moreover, this divorce action was “active and

pending” at all times relevant to WBH’s treatment of the decedent.     Id. at ¶

7.

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Appellant did not waive her arguments on appeal by failing to take an
interlocutory appeal from the trial court’s prior order requiring her to submit
the materials for an in camera review. Additionally, I concur to the extent the
majority finds that the trial court did not err in directing an in camera review
under the circumstances of this case.           Lastly, the majority has ably
summarized the general principles governing our review of Appellant’s claims
in this appeal. See Majority Op. at 9-11 (quoting Red Vision Sys. v. Nat’l
Real Estate Info. Services, L.P., 108 A.3d 54, 61-62 (Pa. Super. 2015));
see also BouSamra v. Excela Health, 210 A.3d 967, 982 (Pa. 2019).

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      Second, after Appellant filed the underlying medical malpractice action

against WBH, WBH deposed her in February 2017.              In her deposition,

Appellant stated she filed for divorce to save the marriage. See WBH’s Mot.

to Produce Certain Documents Identified on a Privilege Log, 5/8/17, at ¶ 7 &

Ex. D. Appellant further asserted that she did not intend to go through with

a divorce and wanted the decedent to seek treatment for substance abuse

issues. Id. at ¶¶ 6-7 & Exs. C-D.

      Third, after Appellant’s deposition, WBH obtained correspondence

exchanged between the divorce counsel for Appellant and the decedent.

Those documents outlined ongoing settlement negotiation in the divorce

proceeding from May 2013 to July 2013. Id. at ¶¶ 8-12. Specifically, a May

15, 2013 letter from Appellant’s divorce counsel to the decedent’s divorce

counsel stated Appellant and the decedent were not in marriage counseling.

See id. at Ex. E. The same letter suggested that Appellant and the decedent

discussed reconciliation, but Appellant wanted to “move out of the residence

and maintain herself and the children” as a precondition for reconciliation. Id.

Appellant’s divorce counsel indicated Appellant was “preparing to move out of

the residence and wants to do so in the very near future.” Id.

      In a letter from Appellant’s divorce counsel to the decedent’s counsel,

dated July 8, 2013, Appellant’s divorce counsel outlined potential terms to

settle the divorce matter. See id. at Ex. H. In a subsequent letter, dated July

23, 2013, Appellant’s divorce counsel asserted Appellant authorized her




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divorce counsel to petition for the appointment of a master if the decedent’s

counsel did not respond to the July 8 letter. See id. at Ex. I.

      On August 9, 2013, seventeen days after the last known exchange

between Appellant’s and the decedent’s divorce counsel, the decedent fell ill

and was hospitalized at WBH.       The decedent died on August 11, 2013.

Appellant, who was appointed administrator of her decedent’s estate, filed the

underlying medical malpractice action against WBH.

      WBH served subpoenas to produce documents on Appellant’s divorce

counsel, seeking to disclose communications between Appellant and divorce

counsel.   The intervening procedural history is unnecessary to discuss.

Ultimately, WBH filed a motion to compel Appellant’s divorce counsel to

disclose Appellant’s correspondence. WBH reasoned, in part, that disclosure

was necessary to rebut Appellant’s deposition testimony that she filed for

divorce to save the marriage and to have the decedent enter treatment for his

alleged substance abuse. WBH asserted that there was no Pennsylvania case

law on point, but cited to Stogner v. Sturdivant, 2011 WL 4435254 (M.D.

La. Sept. 22, 2011) (order), an unreported federal court decision.

      The trial court conducted an in camera review of the contested

documents and granted WBH’s motion to compel. The trial court relied on

Stogner and Scifres v. Ford Motor Co., 2007 WL 201043 (W.D. Okla. Jan.

24, 2007) (order) to conclude the documents were relevant and nondisclosure

would result in prejudice to WBH. Although the trial court did not discuss the

individual documents to be disclosed, it included the documents, under seal,

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as part of the certified record. The trial court determined that the materials

sought by WBH were “highly relevant” to Appellant’s loss of consortium claim

and non-disclosure would “prejudice” WBH’s ability to defend against the loss

of consortium claim. Trial Ct. Op., 4/11/18, at 15.

      Under Pennsylvania law, there is

      a shifting burden of proof in disputes over disclosure of
      communications allegedly protected by attorney-client privilege.
      The party invoking a privilege must initially “set forth facts
      showing that the privilege has been properly invoked; then the
      burden shifts to the party seeking disclosure to set forth facts
      showing that disclosure will not violate the attorney-client
      privilege, e.g., because the privilege has been waived or because
      some exception applies.”

Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376

(Pa. Super. 2012) (citation omitted).

      Once the attorney-client privilege is invoked and the party seeking

disclosure attempts to establish waiver or an exception, the trial court should

issue a ruling with respect to each document actually sought. See Gocial v.

Indep. Blue Cross, 827 A.2d 1216, 1223 (Pa. Super. 2003).              In some

instances, “in camera review may be required.” See id.

      When relying on Stogner and Scifres, the trial court here applied the

test announced by the federal district court in Hearn v. Rhay, 68 F.R.D. 574

(E.D. Wash. 1975). The Hearn test provides that a party waives the attorney-

client privilege if the following three conditions are met:

      (1) assertion of the privilege was a result of some affirmative act,
      such as filing suit, by the asserting party; (2) through this
      affirmative act, the asserting party put the protected information

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       at issue by making it relevant to the case; and (3) application of
       the privilege would have denied the opposing party access to
       information vital to his defense.

Hearn, 68 F.R.D. at 581.2

       The Hearn test is comparable to Pennsylvania law. Under Pennsylvania

law, it is well-settled that the attorney-client privilege “is not absolute” and a

trial judge may disclose otherwise confidential communications “when it is

shown that the interests of the administration of justice can only be frustrated

by the exercise of the privilege . . . .” Red Vision, 108 A.3d at 62 (citation

omitted). The third prong of the Hearn test requires that the information

disclosed by a court be vital to a defense. See Hearn, 68 F.R.D. at 581. This

mirrors this Court’s statements that when “the interests of justice are so

compelling, and the interests of the client in preserving the confidence so

insignificant, . . . the cloak of secrecy may be removed and the confidence

disclosed.” Cohen v. Jenkintown Cab Co., 357 A.2d 689, 692 (Pa. Super.

1976).    Both tests for disclosure require a careful balancing of interests,

including whether the information is relevant and whether disclosure is

necessary under the circumstances of a case.


____________________________________________


2 The Hearn test is not universally accepted, and other courts have criticized
the test as overly broad. See Rhone-Poulenc Rorer Inc. v. Home Indem.
Co., 32 F.3d 851, 864 (3d Cir. 1994) (concluding, “[r]elevance is not the
standard for determining whether or not evidence should be protected from
disclosure as privileged”); see also In re Cty. of Erie, 546 F.3d 222, 229
(2d Cir. 2008) (citations omitted) (holding the “Hearn test presumes that the
information is relevant and should be disclosed and would open a great
number of privileged communications to claims of at-issue waiver”).

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J-A19025-18



      Instantly, Appellant set forth sufficient facts that the communications

between her and her divorce counsel were privileged, and the burden of

disclosing the challenged material shifted to WBH. See Custom Designs &

Mfg., 39 A.3d at 376. As noted above, WBH possessed information regarding

the state of Appellant’s and the decedent’s marriage, as well as information

regarding Appellant’s own state of mind with respect to the divorce.      See

WBH’s Mot. to Produce Certain Documents Identified on a Privilege Log at ¶¶

8-12 & Exs. E, H, I. WBH asserted that further information contained in the

privilege log regarding the divorce action was necessary to rebut Appellant’s

deposition testimony implicating her state of mind as to divorce and the state

of her marriage to the decedent. Moreover, the parties submitted a privilege

log, and the trial court conducted an in camera review, and submitted the

challenged materials for appellate review.

      Based on a review of this record, I agree with the trial court and the

majority that WBH’s proffer established the information sought could be

relevant. Relevance alone, however, is not sufficient to warrant disclosure.

See Cohen, 357 A.2d at 692.

      Instead, Pennsylvania law has consistently required more than mere

relevance to support a court’s decision to direct disclosure. See id. Our law

requires a trial court to determine whether there is a compelling need for the

document to be disclosed under the particular circumstances of a case. See

id. Furthermore, I believe that the question of disclosure is better decided on




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the specific record in a given case rather than relying on applications of

general principles.

      Therefore, I cannot agree that the trial court’s general assertions of

prejudice to WBH were sufficient to compel disclosure of attorney-client

privileged documents in this case. I would remand this matter for the trial

court to review each document requested by WBH. See Gocial, 827 A.2d at

1223 (requiring that the trial court render individualized rulings for each

specific or discrete category of document at issue). I would also require the

trial court to determine whether WBH established a compelling need for

information it sought based on the record developed by the parties. See id.;

see also Cohen, 357 A.2d at 692. To the extent the information requested

was cumulative of information already in possession of WBH, I believe that it

would be difficult for the trial court to determine that the information to be

disclosed was necessary to WBH’s defense as to Appellant’s loss of consortium

claim. See Cohen, 357 A.2d at 692.

      For these reasons, I respectfully dissent from the majority’s decision to

affirm the trial court’s order.




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