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Corey v. Wilkes Barre Hospital Company, LLC

Superior Court of Pennsylvania

September 23, 2019


          Appeal from the Order Entered November 20, 2017, in the Court of Common Pleas of Luzerne County Civil Division at No. 2015-07551



          FORD ELLIOTT, P.J.E.

         Lesley Corey, as administratrix of the Estate of Joseph Corey, and Lesley Corey, in her own right, appeals from the order granting the motions of Wilkes Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital Emergency Department and J. Charles Lentini, M.D. (collectively, "WBH"), ordering the production of certain privileged documents and directing appellant to submit to a second deposition. We affirm.

         The trial court set forth the following:

[O]n November 25, 2015, [appellant] filed a Complaint alleging injuries relating to medical care provided to [her husband, ] Joseph Corey [("decedent")] for wrongful death, a survival action, loss of consortium, and corporate negligence.
As noted above, [appellant] asserted a loss of consortium claim in the pending civil matter. The Luzerne County Court of Common Pleas Docket indicates that [appellant] filed a Divorce Complaint against [decedent] on February 5, 2013. . . . In the Divorce Complaint[, appellant] averred that the marriage was irretrievably broken pursuant to [23 Pa.C.S.A.] § 3301(c); two year separation pursuant to § 3301(d); and indignities pursuant to § 3301(a)(6) among other claims. A Counterclaim was filed by [decedent] on April 1, 2013 and included irretrievable breakdown and fault divorce (indignities) among other claims. . . . During the time frame after the divorce action was filed, [decedent] passed away on August 11, 2013. The divorce action was active approximately six (6) months from the time of filing until the date of [decedent]'s death.
From the early stages of discovery, [WBH] challenged the loss of consortium claim. On December 15, 2015, preliminary objections were filed including an objection to strike [appellant's claim for loss of consortium. On July 21, 2016, the preliminary objection was overruled as premature. Thereafter, throughout the course of proceedings, [WBH] continued to verbally raise the request to dismiss the loss of consortium claim.
In addressing the loss of consortium claim, subpoenas were issued by [WBH] for divorce records and on January 5, 2017, [appellant] filed objections to [the] Notice of Intent to Serve Subpoenas to [Brian J. Cali, Esq., appellant's divorce counsel, ] and [Jonathan S. Comitz, Esq., decedent's divorce counsel]. On February 8, 2017, an Order was filed granting the Motion to Strike Objections filed by [WBH] and ordering counsel to respond within twenty (20) days.
Thereafter, on February 24, 2017, objections to subpoenas were filed by Attorney Comitz and Attorney Cali. [WBH] filed a Motion to Strike Objections to Subpoenas by Attorneys Comitz and Cali on March 9, 2017. A hearing was conducted wherein Comitz Law Firm and Brian Cali participated as to the divorce records and an order was issued on April 11, 2017 wherein the motion to strike objections to subpoenas was granted; the motion for sanctions was denied; and the subpoena for divorce records was to be answered within thirty (30) days. Attorneys Cali and Comitz provided documents regarding the divorce matters that were non-privileged to the parties in this action [and a privilege log].
On May 3, 2017, [WBH] filed a Motion to Compel the production of documents enumerated in the privilege log prepared by [Attorney Cali]. A hearing was conducted and an Order was issued on June 6, 2017 wherein Attorney Cali was directed to provide the court with the privilege log and documents for an in[ ]camera review.
It should be noted that [appellant] did not specifically object or file an appeal regarding the June 6, 2017 order wherein the court received and began the in[ ]camera review of the privilege log submitted by [appellant's divorce counsel].[Footnote 2] The only response by [appellant's] counsel at that time was as follows: "I have one limited role here on this issue and that is to confirm that [appellant] has not and will not waive the attorney-client privilege[."] Accordingly, there was no objection, or appeal to the in[ ]camera review raised at that time.
[Footnote 2] In the current appeal[, appellant] is arguing that an in[ ]camera review of the privileged documents is error. Again, [appellant] did not object nor did [appellant] request appellate review at the issuance of the June 6, 2017 order.
After receipt of non-privileged documents, [WBH] filed a Notice of Deposition to [appellant], arguing that the divorce records provided reflected significant inconsistencies in the prior deposition testimony of [appellant].[Footnote 3] [Appellant] objected to the second deposition of [appellant] arguing that she was questioned extensively regarding the divorce proceedings over the course of the initial five (5) hour deposition. A hearing on this issue was conducted on August 17, 2017 and the matter was taken under advisement. Thereafter, on October 11, 2017[, WBH] filed motions for partial Summary Judgment, which included dismissal of the loss of consortium claims.
[Footnote 3] [Appellant] was initially deposed in this matter on February 3, 2017 prior to the receipt of the non-privileged divorce documents.
A hearing was scheduled for November 20, 2017 regarding the partial summary judgments. Prior to addressing the partial summary judgment the Court addressed the outstanding matter of the in[ ]camera review of the divorce privilege log and the second deposition of [appellant] since these issues were indisputably connected to the loss of consortium claim and the pending partial summary judgment of that claim.
The Court began oral argument by inquiring if [appellant], after review and release of the non-privileged documents in regard to the divorce, was continuing to pursue the loss of consortium claim. [Appellant's counsel] indicated that they still intended to pursue the claim.
At that time, the Court noted, "As I have said repeatedly, ordinarily an attorney-client privilege maintains the utmost authority that is rarely if at any time called into question." The Court further noted the basis of the loss of consortium claim directly reflects the status of the marriage at the time of [decedent]'s death. Further the Court specifically stated, "Each of these documents are relevant and discoverable because they were placed into evidence by [appellant] in seeking her loss of consortium claim and the elements that are contained within the loss of consortium claim."
An order was issued on November 20, 2017 indicating that the documents contained in the privilege log are relevant and discoverable, thereby granting the Motion to Compel the Production of Documents Numbered (4), (6), (7), (8), (10), (11), (12), (13), (14), and (15)[Footnote 4] of the Privilege Log prepared by [appellant's divorce counsel].[1] The Motion of [WBH] to Strike [appellant's Objections to the Deposition of [appellant] and for Leave of Court to Conduct [a] Second Deposition of [appellant] was also granted.
[Footnote 4] The privileged documents that were released pursuant to the November 20, 2017 order were not filed of record to protect the privacy of [appellant]. In correspondence provided to counsel, the privileged documents were provided indicating if there was an objection, counsel should notify the court. For the purposes of this appeal, the privileged documents are filed simultaneously under separate order and sealed.
Thereafter, on November 27, 2017, [WBH] filed a Motion for Contempt of Court and Sanctions Directed to [appellant's counsel] for Failure to Comply with [the trial court's] Order dated November 20, 2017. On December 4, 2017, [appellant] filed an Answer to [WBH]'s Motion for Sanctions which included cross motions to disqualify [the trial c]ourt and a motion to vacate the [trial] court's Order dated November 20, 2017. A hearing was held on December 6, 2017 in which [WBH]'s Motion for Contempt of Court and Sanctions was taken under advisement and [appellant]'s cross motion to disqualify the [trial c]ourt was denied. [Appellant]'s cross motion to vacate the Order dated November 20, 2017 was dismissed.
On December 15, 2017, [appellant] filed [a] Motion for Reconsideration of the Order of November 20, 2107 and a separate Motion for Reconsideration of the Order of November 20, 2017 and All Other Orders Which Pertain to Attorney/Client Privileged Communication. The motions for reconsideration were deemed moot based upon the appeal filed by [appellant].

         Trial court opinion, 4/11/18, at 1-6 (citations omitted; footnote 1 omitted).

         Appellant filed a timely notice of appeal. The trial court ordered appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely ...

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