Smith, M. v. O'Brien, T. ( 2023 )

J-S33004-22
2023 PA Super 9MARY KATHLEEN SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THERESE T. O’BRIEN, INDIVIDUALLY :
AND AS ADMINISTRATRIX OF THE :
ESTATE OF WILLIAM P. O’BRIEN, III, :
DECEASED :
:
APPEAL OF: THERESE T. O’BRIEN, :
AS ADMINISTRATRIX OF THE ESTATE :
OF WILLIAM P. O’BRIEN, III, :
DECEASED : No. 837 EDA 2022
Appeal from the Order Entered January 31, 2022,
in the Court of Common Pleas of Montgomery County,
Civil Division at No(s): 2020-18361.
MARY KATHLEEN SMITH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THERESE T. O’BRIEN, INDIVIDUALLY :
AND AS ADMINISTRATRIX OF THE :
ESTATE OF WILLIAM P. O’BRIEN, III, :
DECEASED :
:
APPEAL OF: THERESE T. O’BRIEN, :
INDIVIDUALLY : No. 838 EDA 2022
Appeal from the Order Entered January 31, 2022,
in the Court of Common Pleas of Montgomery County,
Civil Division at No(s): 2020-18361.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
OPINION BY KUNSELMAN, J.: FILED JANUARY 19, 2023
Therese T. O’Brien, individually and as administratrix of her husband
William O’Brien’s estate, appeals from the order directing her to divulge a
J-S33004-22
conversation she and Mr. O’Brien had shortly before his death. The trial court
rejected Mrs. O’Brien’s assertion of spousal-communication privilege.1 While
the spousal-communication privilege survives a marriage, the basis for
entertaining an immediate appeal from an order compelling disclosure of
spousal communications does not. Thus, we quash these consolidated appeals
as interlocutory.
According to Ms. Smith’s complaint, when she was between the ages of
five and eleven, Mr. O’Brien sexually assaulted her on multiple occasions while
she visited the O’Brien home. Mrs. O’Brien was present during those visits.
Ms. Smith eventually told her parents, who called the police. They came
to the home, questioned Mr. O’Brien about the sexual-assault allegations, but
did not arrest him. Once law enforcement departed, Mr. O’Brien told his wife
“why he was speaking to the police.” Trial Court Opinion, 4/14/22, at 2 (citing
Depo. of Mrs. O’Brien at 11:15-17, 22-25). He then got in his car and drove
off. A few hours later, Mr. O’Brien died in a train crash.
Upon becoming an adult, Ms. Smith sued Mrs. O’Brien and Mr. O’Brien’s
estate for battery, negligence, and intentional infliction of emotional distress.
In discovery, Mrs. O’Brien sat for a deposition. As mentioned, she objected
to questions concerning her conversation with her husband based on spousal-
____________________________________________
1 The statute provides, “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.
-2-
J-S33004-22
communication privilege. Ms. Smith moved to compel her testimony, and the
trial court granted the motion. These appeals followed.
After reviewing the record, we questioned our appellate jurisdiction over
the appealed-from order directing discovery. “Neither party has raised this
issue; however, it is well-settled that this Court may raise the issue of our
jurisdiction sua sponte.” Funk v. Empfield, 281 A.3d 315, 317 (Pa. Super.
2022).
Therefore, we issued a rule to show cause regarding why we should not
quash these appeals due to a lack of appellate jurisdiction. Specifically, we
asked “whether the underlying goal of [spousal] privilege is promoted by
allowing collateral appeals after a marriage has ended.” Rule to Show Cause,
11/2/22, at 2. Mrs. O’Brien responded to our order by filing a supplemental
brief.
She argues the discovery order is an immediately appealable, collateral
order, because it implicates a right that is too important to be denied review.
Mrs. O’Brien further asserts that Commonwealth v. Harris, 32 A.3d 243 (Pa.
2011), controls the question of our appellate jurisdiction. Because spousal-
communication privilege survives the marriage, Mrs. O’Brien believes “that
immediate judicial review to prevent disclosure of spousal communications
. . . is not dependent upon whether a spouse is dead or alive or a marriage
intact or terminated.” O’Brien’s Supplemental Brief at 8. Hence, her
argument focuses on the statutory privilege itself, rather than its purpose (i.e.,
protecting martial harmony). In our show-cause order, we explicitly directed
-3-
J-S33004-22
Mrs. O’Brien to discuss the latter nuance. We find her supplemental brief
unpersuasive.
“Jurisdiction is purely a question of law; the appellate standard of review
is de novo, and the scope of review plenary.” Kapcsos v. Benshoff, 194 A.3d
139, 141 (Pa. Super. 2018) (en banc).
Pennsylvania courts have long held that “an appeal will lie only from a
final order unless otherwise permitted by statute.” Pugar v. Greco, 394 A.2d
542, 544 (Pa. 1978). “A final order is one which usually ends the litigation,
or alternatively, disposes of the entire case.” Id. at 544–45; see also
Pa.R.A.P. 341(b). Here, the appealed-from order is not final. It directs further
discovery, rather than end the litigation.
Even so, an immediate appeal will lie from a collateral order. “An appeal
may be taken as of right from a collateral order of a trial court . . . .” Pa.R.A.P.
313(a).
A collateral order is “an order [(1)] separable from and collateral to the
main cause of action [(2)] where the right involved is too important to be
denied review and [(3)] 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(b). If an order satisfies the three-pronged test set forth in Rule
313(b), this Court may exercise appellate jurisdiction over the order, even
though it is not final. See, Rae v. Pennsylvania Funeral Directors Ass’n,
977 A.2d 1121, 1125 (Pa. 2009).
-4-
J-S33004-22
The collateral-order rule is “a specialized, practical application of the
general rule that only final orders are appealable as of right.” Spanier v.
Freeh, 95 A.3d 342, 345 (Pa. Super. 2014). “As such, this Court must
stringently apply the requirements of the collateral-order doctrine.” Id. If an
order does not meet “all three prongs of the collateral-order test, this Court
has no jurisdiction to consider an appeal” from that order. Id.In CAP Glass, Inc. v. Coffman, 130 A.3d 783 (Pa. Super. 2016), this
Court reviewed the appealability of an order directing a husband to testify
against his wife, who was a co-defendant. There, CAP Glass, Inc. challenged
appellate jurisdiction based on the first prong. This Court discussed that prong
at length and found the issue on appeal to be collateral to the main cause of
action.
In this case, Ms. Smith’s causes of action are battery, negligence, and
intentional infliction of emotional distress. These matters are distinct and
separable from the issue of whether Mr. O’Brien’s conversation with his wife
falls within the statutory privilege afforded to martial communications. Thus,
the appealed-from order satisfies the first prong of the collateral-order test.
Regarding the second and third prongs, the CAP Glass Court said, the
“privilege protecting confidential marital communications, with its underlying
goal of protecting and promoting marital harmony, obviously qualifies”
as a right that is too important to be denied review. Id. at 790 (emphasis
added). “In addition, a disclosure of confidential, marital communications
-5-
J-S33004-22
cannot be undone, and therefore the asserted right will be irreparably lost if
we defer review.” Id.Here, unlike in CAP Glass, husband is dead. Therefore, the statutory
privilege’s purpose of protecting and promoting the O’Briens’ marriage from
the discord that might arise after disclosing private conversations is absent.
Accordingly, once a marriage ends, the spousal-communication privilege is
greatly reduced in importance. Simply put, 42 Pa.C.S.A. § 5923 cannot
protect or promote the marital harmony of a nonexistent marriage. With no
marriage to promote or protect, the statutory privilege carries no more weight
in the collateral-order analysis than any other rule of evidence.
The only tangible interest Mrs. O’Brien has in keeping her discussion
with her husband private is defending this litigation. She cannot possibly claim
that this appeal is protecting or promoting their former marriage, nor does
she. See O’Brien’s Supplemental Brief at 8-10. Therefore, Mrs. O’Brien’s
interest in appealing the discovery order is no different from any party seeking
to keep relevant, inculpatory evidence out of court. That interest – common
to all civil defendants – does not constitute a right too important to be denied
immediate review under Pa.R.A.P. 313(b).
If a jury returns a verdict against her, Mrs. O’Brien may appeal from the
final judgment like any other defendant. Then, if we determine that disclosure
of the marital communication was an abuse of discretion and that the error
was harmful to Mrs. O’Brien’s case, we can easily remedy that ordinary harm
by vacating the judgment, awarding a new trial, and excluding the evidence.
-6-
J-S33004-22
Hence, whatever harm the trial court’s discovery order may ultimately inflict
upon Mrs. O’Brien’s defense is not irreparable.
Finally, Mrs. O’Brien’s reliance on Harris, supra, is misplaced. Harris
involved a layperson-professional privilege in a death-penalty case under the
Post-Conviction Relief Act.2 The Commonwealth sought to call the defendant’s
psychologist as an expert witness against him, and the PCRA Court granted
the motion. The defendant immediately appealed. Reaffirming the general
rule that orders compelling disclosure of privileged communications are
collateral, the Supreme Court of Pennsylvania focused on the purpose of the
layperson-professional privileges.
Those “privileges exist to promote frank discussions” between
professionals and their patients/clients/parishioners. Harris, 32 A.3d at 249.
Not permitting an immediate appeal might “chill such discussions.” Id. Of
particular concern for the Harris Court was the reliance that laypersons put
in learned professionals when discussing private matters. As the Supreme
Court explained, without “an immediate appeal, the possessor of putatively
privileged material will repeat to others what the client told him or her in
confidence, and, if it turns out that the claim of privilege was meritorious, a
later appeal will not be able to undo the harm.” Id. (emphasis added).
Here, by contrast, the spousal-communication privilege does not involve
the protection of clients’ interests or professionals’ need for frank discussions.
____________________________________________
2 See 42 Pa.C.S.A. §§ 9541-9546.
-7-
J-S33004-22
Moreover, the spousal-communication privilege does not arise from a
layperson-professional relationship or the confidentiality upon which such
professional relationships are built. Instead, spousal privilege promotes and
protects a couple’s marriage from discord that disclosing communications
might produce. Therefore, the goal of the spousal privilege differs greatly
from the goal of the layperson-professional privileges that influenced the
Harris decision. Moreover, the Harris Court never considered the spousal
privilege. Hence, the holding of Harris is limited to its facts and specifically
the layperson-professional privileges that it reviewed.
In sum, after a marriage ends, an order directing disclosure of a marital
communication is not collateral. If privileged, marital communications are
improperly disclosed in court, no harm or discord can befall a marriage that
no longer exists. Because the O’Brien marriage has ended, the discovery
order before us does not satisfy the second and third prongs of the collateral-
order doctrine. See Pa.R.A.P. 313(b).
As such, we lack appellate jurisdiction. See Spanier, supra.Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
-8-