HARRISBURG – A majority complement of the Superior Court of Pennsylvania has reversed a Montgomery County court’s decision to compel a wife’s deposition testimony regarding conversations with her now-deceased husband, rejecting her assertion of the spousal confidential communications privilege.
Superior Court Judge Alice Beck Dubow issued a memorandum opinion to that effect on Aug. 7, in Mary Kathleen Smith’s action against Therese T. O’Brien, (Individually and as Administratrix of the Estate of William P. O’Brien III, deceased).
Dubow began by outlining the facts of the case.
“On Feb. 26, 2020, Smith filed a complaint against Therese T. O’Brien, Individually and as Administratrix of William P. O’Brien III’s Estate, alleging battery, intentional inflection of emotional distress and negligence, based upon her claim that William repeatedly sexually assaulted her between 2005 and 2011, when she was between 5 and 11 years old. Smith asserted that the assaults occurred when she stayed overnight at William and Therese’s house, who were her former neighbors. During Therese’s Oct. 28, 2021 deposition, counsel for Therese in her individual capacity as well as in her capacity as Administratrix for William’s Estate objected to questioning relating to conversations between William and Therese regarding Smith’s allegations of abuse,” Dubow said.
“On March 8, 2011, the police came to the O’Brien residence and spoke to William. Therese spoke to her William at the residence after the police left, and he told her why he was speaking to the police. William then left his residence in one of the family vehicles. Therese suspected that he was going to visit his brother, Barry O’Brien, in Philadelphia. Therese called Barry because she was concerned that William was going to commit suicide. Abington Township Police came back to the O’Brien residence at approximately 7:30 p.m. that evening, after William had already left. The police informed Therese that the matter had to do with her former neighbors, the Smiths. William telephoned Therese after the police left, and the two spoke. Later in the evening of March 8, 2011, Barry and, subsequently, the police informed Therese that ‘William had been killed in a train accident.”
Dubow added that Smith filed a motion to compel further testimony of Therese pertaining to conversations she had had with William ‘regarding his abuse of Smith’ and ‘his own sexual abuse.’ The trial court granted the motion to compel and ordered Therese to ‘answer questions regarding conversations and communications between herself and William pertaining to Smith’s claims of child abuse.’
On March 1 and 2, 2022, Therese filed notices of appeal individually and as Administratrix of Husband’s Estate. Therese and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925. On July 18, 2022, the parties filed a stipulation for consolidation pursuant to Pennsylvania Rule of Appellate Procedure 513.
On appeal to the Superior Court, Therese asked, among other questions, whether the trial court erred in finding that she should answer questions regarding conversations and communications between herself and her late husband, decedent William P. O’Brien III, allegedly pertaining to Smith’s claims of child abuse, because the spousal confidential communication privilege between herself and William survived his death, pursuant to 42 Pa.C.S. Section 5923.
“Therese’s…questions assert that the trial court erred in rejecting her assertion of the spousal confidential communications privilege and requiring her to ‘answer questions regarding conversations and communications between herself and William allegedly pertaining to Smith’s claims of child abuse.’ Specifically, she asserts that the trial court erred in relying on Section 6381 of the Child Protective Services Law, 23 Pa.C.S. Section 6381, as discussed in Commonwealth v. Spetzer, to negate the spousal confidential communications privilege applicable in civil cases, as set forth in 42 Pa.C.S. Section 5923. We review Therese’s challenges to the trial court’s discovery order to determine ‘whether the trial court committed an abuse of discretion,” Dubow stated.
“Wife asserts the spousal confidential communications privilege applicable to civil cases, which provides as follows: Except as otherwise provided in this sub-chapter, 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. This ‘privilege encompasses any communications which were confidential when made and which were made during the marital relationship.’ As noted in the prior issue, the spousal confidential communications privilege ‘remains in effect after divorce or the death of one spouse.”
In Spetzer, Dubow explained that the Supreme Court of Pennsylvania concluded that a defendant’s counsel was not ineffective for failing to assert the spousal confidential communication privilege, to preclude the voluntary testimony of the defendant’s wife concerning their communications regarding his numerous crimes.
In that case, the Commonwealth charged the defendant with 58 criminal counts, including rape of his wife’s daughter, witness intimidation, criminal solicitation, and criminal attempt in regard to his planned sexual assaults on her daughters.
The Court held that the spousal confidential communications privilege did not apply in light of the defendant’s egregious actions, which included the defendant’s “persistent and sadistic statements” concerning his “actual and contemplated crimes against his wife and her children.” The Court opined that the spousal privilege did not apply because the communications “did not arise from the confidence existing between the parties, but from the want of it. In reaching its conclusion, the Supreme Court “found further support” for its conclusion that the privilege did not apply “in light of Section 6381 of the Child Protective Services Law.”
“Section 6381 of the CPSL provides that ‘the rules of evidence in this section shall govern in child abuse proceedings in court or in any department administrative hearing pursuant to Section 6341 (relating to amendment or expunction of information).’ Section 6381(c) restricts application of the spousal confidential communications privilege, instructing that ‘a privilege of confidential communication between husband and wife…shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse,” Dubow said.
“The Spetzer Court found the CPSL relevant to whether a spouse has a reasonable expectation that the ‘communication will remain confidential.’ Significantly, the Court clarified that it did ‘not reach the broader question of whether the CPSL operates directly to modify [the confidential communications privilege] in criminal prosecutions involving the abuse of children.’ Rather, the Court explained that Section 6381(c) was relevant to the spousal confidential communications privilege ‘in a more subtle and indirect fashion’ as it ‘affects what a spouse’s ‘reasonable expectation’ of continued confidentiality may be with respect to marital communications.’ Applying this reasoning, the Court found that the husband in Spetzer ‘had no reasonable expectation that his statements to his wife concerning his previous rapes of his stepdaughter, his attempts to intimidate the witnesses in the prosecution arising from those crimes, and the further crimes he intended to commit upon his stepdaughters, would remain their ‘little secret,’ noting that husband conceded that the challenged statements were likely used at ‘the Children and Youth Services matter seeking to have the children adjudicated dependent.”
Dubow provided that “in the instant case, the trial court applied the Spetzer discussion of Section 6381 of the CPSL to conclude that William did not have a reasonable expectation that his communications with Therese would remain confidential, where the communications between he and she ‘related to [the] abuse of a child’ in their care.”
Dubow added that “the trial court opined that the communications relating to child abuse were not ‘the sensitive, marital harmony-inspiring communications contemplated by the common law authorities, or the Pennsylvania General Assembly, in erecting this privilege.’ In light of the circumstances presented here, we respectfully disagree with the trial court’s analysis.”
“We reiterate that Spetzer expressly rejected imposition of a bright-line rule applying Section 6381’s exception ‘to modify’ the spousal confidential communications privilege in all cases involving allegations of child abuse. Rather, Section 6381, by its own terms, applies to ‘child abuse proceedings in court or in any department administrative hearing pursuant to Section 6341 (relating to amendment or expunction of information).’ Thus, Section 6381 does not directly apply to the case at bar because it is a civil case and not a child abuse proceeding under the CPSL. In contrast, the spousal confidential communication privilege enacted by the General Assembly in Section 5923 clearly and unambiguously applies to civil actions such as the instant case,” Dubow stated.
“Moreover, we find that the ‘indirect’ effect of Section 6381(c) on the ‘reasonable expectations’ of confidentiality in spousal communications to be inapplicable to the instant case. This case is distinguishable from Spetzer and Hunter where the spouses were subject to separate child abuse proceedings at which the statements had been or would be revealed. In this case, there is no indication that there was a ‘child abuse proceeding’ under the CPSL at which William and Therese’s communications would be revealed. Rather, the only proceeding was the current civil action which is not subject to the evidentiary rules of the CPSL, absent further legislative action as suggested in Spetzer and Hunter. Absent application of Section 6381, this case involves the private conversation of Therese with William, who was ‘emotionally distraught’ following a visit from police officers, which, as we held in CAP Glass, Inc. v. Coffman, presumptively constitutes a confidential marital communication.’ Smith has not overcome this presumption. Accordingly, we conclude that the trial court erred in refusing to enforce the spousal confidential communications privilege and granting Smith’s motion to compel Therese’s further testimony.”
Dubow stated that the trial court erred in rejecting application of the spousal confidential communications privilege to Therese’s conversations with William regarding Smith’s allegations of abuse – and then reversed the trial court’s order compelling Therese’s testimony and remanded for further proceedings.
Fellow Superior Court judges Anne E. Lazarus, Mary Jane Bowes, Victor P. Stabile, Carolyn H. Nichols, Megan Sullivan and Timika Lane joined Dubow in her opinion.
In a dissent written by Superior Court Judge Deborah A. Kunselman and joined by colleague Judge Megan McCarthy King, it was felt that the Superior Court did not have proper jurisdiction to consider the appeal in this case.
“As the majority observes, Therese O’Brien appeals the trial court’s discovery order, compelling her to answer questions at a deposition about a conversation she had with her husband shortly before his death. While I agree with the learned majority that the spousal-communication privilege survives the end of a marriage, the basis for entertaining an interlocutory appeal from an order compelling disclosure of spousal communications does not. Thus, I believe we lack appellate jurisdiction over that pre-trial order and respectfully dissent,” Kunselman said.
“The question before us is not whether the spousal-communication privilege survives the marriage; we all agree that it does. The question is whether deferring appellate review until final judgment so imperils the interest of a former marriage as to justify immediate appellate review of the discovery order. Because I believe a post-judgment appeal can adequately protect the interest of the former spouse, I would quash these interlocutory appeals.”
Superior Court of Pennsylvania case 837 EDA 2022 & 838 EDA 2022
Montgomery County Court of Common Pleas case 2020-18361
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com