testifying to protect her own interests in this matter. In Ebner v. Ewiak, 335 Pa. Super. 372, 484 A.2d 180 (Pa. Super. 1984), the Pennsylvania Superior Court held that § 5924 does not prohibit a wife, who is a defendant, from testifying on her own behalf even though her testimony would have an adverse effect on her husband who was a co-defendant. Likewise, Mrs. Brown is a named plaintiff in this matter and has the right to testify on her own behalf. Her testimony is not being offered for the sole purpose of adversely affecting her husband's action, but rather she is seeking to renounce her involvement in possible fraudulent claims. Id. at 183. If Mr. Brown's claims are found to be fraudulent, it is possible that Mrs. Brown's participation in this matter would expose her to future actions. Therefore, she will be permitted to testify to what she asserts to be a fraudulent claim.
For these reasons, I conclude that 42 Pa.C.S.A. § 5924 does not preclude the testimony of Mrs. Brown.
II. Confidential Communications
Mr. Brown also contends that his wife's testimony is inadmissable pursuant to 42 Pa. C.S.A. § 5923, which prohibits either spouse from testifying about any confidential communications made during the marriage. Mr. Brown has made several objections to his wife's testimony on the basis that it reveals confidential communications. In support of his argument, Mr. Brown relies on Commonwealth v. Clark, 347 Pa. Super. 128, 500 A.2d 440 (Pa. Super. 1985), appeal granted, 512 Pa. 1, 515 A.2d 1320 (Pa. 1986), appeal dismissed, 516 Pa. 16, 531 A.2d 1108 (Pa. 1987) in which the superior court interpreted the criminal counterpart to § 5923. In Clark the court reversed the trial courts admission of the testimony of defendant's wife in a criminal case. The wife testified that her husband left the house with a shotgun, and when he returned he told his wife that he may have killed someone while holding up a gas station. As such, Mr. Brown contends that if the testimony is not permitted to prove murder, it certainly should not be permitted to show fraud.
However, Clark merely represents a conflict in the superior court. The court in Kine found that the privilege protecting confidential communications between spouses does not extend to communications or acts made in furtherance of a fraud. Kine, 209 A.2d at 3. The Kine court reasoned that the privilege would allow spouses to shield themselves from liability by working with each other to perpetrate a fraud. I am in agreement with the Kine and hold that 42 Pa. C.S.A. § 5923 does not prohibit the testimony of a spouse regarding communications made in furtherance of a fraud.
Accordingly, I shall enter the following Order:
AND NOW, this 20th day of December, 1993, upon consideration of Plaintiff Thomas Brown's Motion In Limine to Preclude or Strike the Testimony of Joan Ann Brown, and all responses thereto, it is hereby ORDERED that said Motion is DENIED.
BY THE COURT:
Robert F. Kelly, J.