holding that spousal privilege was not separable in case alleging that husband and wife engaged in fraud, because the spousal privilege does not extend to communications that perpetrate a fraud, and the court would have to determine whether fraud was committed to determine whether the privilege applied
How later courts described this case
- holding that spousal privilege was not separable in case alleging that husband and wife engaged in fraud, because the spousal privilege does not extend to communications that perpetrate a fraud, and the court would have to determine whether fraud was committed to determine whether the privilege applied
Written by the judges who cited it.
The opinion
Concurring and Dissenting Statement By
KLEIN, J.:
¶ 1 Although I concur in the ultimate result which effectively affirms the under *1273 lying trial court decision, I disagree that we are required to quash the appeal. Therefore, I would affirm on the merits.
¶ 2 As to quashing the appeal as interlocutory, I believe this appeal deals with the general concept of the fraud and business exceptions to spousal privilege and does not require that we determine the specifics of whether any particular ques-' tion involves fraud. Therefore, I disagree that we must delve into the merits of the fraud allegations to determine whether the privilege applies.
¶ 3 Also, although the issue of spousal privilege has not been specifically addressed, I note that in general, when privilege is claimed in relation to a discovery order, our courts have found this to be a sufficient basis to review the discovery order as a collateral order. See Castellani v. Scranton Times, L.P., 916 A.2d 648 (Pa.Super.2007) (revealing an unnamed news source); Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578 (Pa.Super.2006) (trade secrets); Dodson v. Deleo, 872 A.2d 1237 (Pa.Super.2005) (medical peer review materials); Troescher v. Grody, 869 A.2d 1014 (Pa.Super.2005) (physician’s personnel and credentials file); and J.S. v. Whetzel, 860 A.2d 1112 (Pa.Super.2004) (defense expert’s 1099 IRS forms). I see no reason to treat spousal privilege any differently from these other areas of privileged information. Further, I note that in terms of the separability prong of the collateral order test, our Supreme Court has endorsed a practical approach to that analysis and accepts that some interrelationship between the subject of the order and the merits of the underlying case is tolerable. See Pridgen v. Parker Hannifin Corp., 588 Pa. 405 , 905 A.2d 422 (2006).
¶4 I agree with the reasoning of the trial court and would affirm the decision based upon the opinion of the Honorable Maurino J. Rossanese, Jr., who, I believe, correctly determined that the spousal privilege does not apply in this situation due to the implications of fraud and the business/property exceptions to that privilege.