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BROWN v. SCAFIDI

December 20, 1993

THOMAS BROWN, AND JOAN ANN BROWN Plaintiffs,
v.
JOSEPH J. SCAFIDI, ESQUIRE, et al., Defendants.



The opinion of the court was delivered by: BY THE COURT; ROBERT F. KELLY

 R.F. KELLY, J.

 Before the Court is Plaintiff Thomas Brown's Motion In Limine to Preclude or Strike the Testimony of his wife, Joan Ann Brown. *fn1" For the reasons that follow, Mr. Brown's Motion is denied.

 Plaintiffs Thomas and Joan Ann Brown commenced this action against Joseph Scafidi and the law firms that employed him for legal malpractice and fraud in connection with their representation of the Browns in connection with a personal injury claim. *fn2" In the Complaint, the Browns contend that Mr. Brown was seriously injured in an accident which occurred on February 21, 1989, and that he was disabled as a result of the injuries. The Complaint further asserts that Defendants failed to provide competent and skillful representation, which prevented the Browns from fully recovering for their injuries.

 During discovery in this matter, Mrs. Brown came forward with testimony that her husband's claimed injuries were fraudulent. Mrs. Brown testified in deposition that Mr. Brown's claimed injury of February 21, 1989 is not a new injury, but is actually the same injury that he suffered while living in Colorado in 1980. According to Mrs. Brown, she and her husband conspired to withhold information concerning this prior injury from physicians and lawyers. Moreover, she claims that her husband is not disabled as a result of this current alleged injury. Mrs. Brown further testified that the legal malpractice claim against Defendants is also fraudulent.

 In his motion to preclude his wife's testimony, Mr. Brown asserts the Pennsylvania spousal privilege. Rule 501 of the Federal Rules of Evidence states, in part: "In civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof, shall be determined in accordance with State law." Fed. R. Evid. 501. In accordance with the mandate of Rule 501, Pennsylvania law controls this issue. Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978).

 I. Testimony Against a Spouse

 Mr. Brown asserts that Mrs. Brown's testimony is inadmissible because spouses are not allowed to testify against each other under Pennsylvania law. 42 Pa. C.S.A. § 5924. The statute states:

 
(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 ...

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