No Fraud Exception to Confidential Spousal Communication Privilege

There is no fraud exception to Pennsylvania’s civil spousal communication privilege, the Superior Court held in CAP Glass, Inc. v. Coffman, __ A.3d __ (No. 2039 WDA 2014, filed Jan. 13, 2016). CAP Glass, Inc. commenced a civil action for conversion against its in-house accountant, Lisa Cavanaugh, after she issued numerous fraudulent checks on CAP Glass’s account. At a deposition, Ms. Cavanaugh’s husband, John Cavanaugh, who was also named in the complaint, objected to several questions that could have revealed confidential marital communications. CAP Glass filed a motion to compel Mr. Cavanaugh’s testimony. The trial court granted the motion on the basis of a fraud exception to the confidential spousal communication privilege at 42 Pa. C.S. §5923. Ms. Cavanaugh filed an interlocutory appeal, which the Superior Court allowed under Pa. R.A.P. 313.

The unanimous panel reversed the lower court’s application of the privilege in an opinion authored by Judge Stabile. The Court noted that Pennsylvania courts apply a fraud exception to Section 5923’s counterpart at 42 Pa. C.S. §5924, which renders spouses incompetent to testify against each other. Although Sections 5923 and 5924 serve similar purposes, i.e., to protect and promote marital harmony, the Court was unwilling to extend a fraud exception to Section 5923’s spousal communication privilege. In doing so, the Court looked to the Supreme Court’s analysis of the criminal analogues to the spousal testimony and confidential communications privileges found at 42 Pa. C.S. §§5913 and 5914, respectively. Relevantly, the Supreme Court has refused to extend Section 5913’s exceptions to Section 5914, reflecting legislative intent that confidential marital communications are worthy of special protection, even in cases where spouses are competent to testify against each other. In light of the strong public policy favoring the protection of marital communications, the Superior Court held that any additional restrictions on the Section 5923 privilege must come from the General Assembly or the Supreme Court.

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