LESLEY COREY, AS ADMINISTRATRIX OF THE ESTATE OF JOSEPH COREY, AND LESLEY COREY, IN HER OWN RIGHT
WILKES BARRE HOSPITAL COMPANY, LLC D/B/A WILKES-BARRE GENERAL HOSPITAL EMERGENCY DEPARTMENT AND J. CHARLES LENTINI, M.D.
PENNSYLVANIA PHYSICIANS SERVICES, LLC APPEAL OF: LESLEY COREY
from the Order Entered November 20, 2017, in the Court of
Common Pleas of Luzerne County Civil Division at No.
BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
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
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
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
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
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]. 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
court opinion, 4/11/18, at 1-6 (citations omitted; footnote 1
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