CAP Glass v. Coffman, T. Appeal of: Cavanaugh, L.

J-S44024-15
2016 PA Super 8CAP 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
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“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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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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J-S44024-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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