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
-2-
J. A19025/18
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
-3-
J. A19025/18
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
-4-
J. A19025/18
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-
J. A19025/18
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.
-6-
J. A19025/18
[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
-7-
J. A19025/18
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-
J. A19025/18
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-
J. A19025/18
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
- 10 -
J. A19025/18
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
- 11 -
J. A19025/18
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.
- 12 -
J. A19025/18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2019
- 13 -