My spouse said what? A closer look at the “spousal privilege” and the confidentiality afforded to communications between spouses in Pennsylvania.

My Spouse Said What??!

Lisa Smith Presta is a senior partner and Chair of the Litigation Department at MacDonald Illig. She handles complex, multiparty litigation involving commercial disputes, breach of contract claims, employment matters and professional services. Jamie Schumacher is a senior associate at MacDonald Illig and Chair of the Erie County Bar Association Civil Litigation Section. She practices in the firm’s Commercial Litigation, Labor & Employment, and Government Services Practice Groups.

A longstanding principle in Pennsylvania law is the confidentiality afforded to communications between spouses. Dating back to at least the 1930s, the “spousal privilege” (also known as the “marital privilege”) has been considered by the U.S. Supreme Court to be “so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice.” Wolfle v. United States, 291 U.S. 7 (1934).

Two Types of Spousal Privilege

This public policy is codified in Pennsylvania and actually encompasses two distinct privileges — the communications privilege and the testimonial privilege. These privileges can apply in both criminal and civil proceedings though some federal courts question their application in civil matters.

The Communications Privilege

The communications privilege protects the contents of exchanges between married individuals which the individuals would not have made except for the “absolute confidence” of the marital relationship. In order to invoke the communications privilege, the spouse must establish that: a) at the time of the communication, the spouses were in a valid marriage; b) the communication was intended to convey information between spouses, and neither spouse has disclosed the communication to a third party; and c) the communication was intended to be confidential. The protection survives both death and divorce for communications made during the course of the marriage. The privilege is held by both spouses so either can invoke its protection, and neither can divulge the communication without the consent of the other. The communications privilege applies to oral communications, written communications, expressions and gestures (for example, a nodding of the head). It is of note, however, that this privilege does not apply when the gesture is observable by third parties, when the spouses are suing each other in a civil matter, or where one of the spouses initiates a criminal proceeding against the other.

The Testimonial Privilege

The testimonial privilege protects an individual from being compelled to testify against her or his spouse about any matter — often, what may have been observed, overheard or learned rather than just the contents of a confidential communication. This privilege applies only during the period of the marriage itself. Exceptions include child abuse and legal proceedings between spouses (for example, divorce, custody, support and protection from abuse matters) as well as the recognition that a spouse may testify in order to exculpate herself or himself from allegations of criminal wrongdoing.

And They Lived Happily Ever After

In a 2016 suit between the Cavanagh family and C.A.P. Glass Incorporated, the Pennsylvania Superior Court ruled that Mrs. Cavanagh could prevent her husband from testifying about private conversations between the two regarding the details of a $1.5 million fraudulent check scheme allegedly perpetuated while she was working as an accountant at C.A.P. Glass.

The trial court refused to apply the privilege based upon the “fraud exception,” which provides that spouses may not rely upon the testimonial privilege where its application would assist them in committing a fraud. The trial court instructed Mr. Cavanagh to testify about the fraudulent check scheme, an immediate appeal was taken, and the trial court was reversed. Thereafter, counsel for the Cavanaghs stated their gratitude “that the [Superior Court] would give respect to the sanctity of the marital relationship in this day and age.” For information, call 814/870-7600 or visit www.macdonaldillig.com.

MERCY CENTER FOR WOMEN CELEBRATES WOMEN MAKING HISTORY HONOREES

The Mercy Center for Women recently celebrated its “Dynamic Dozen” for 2022. The 12 women were selected for the way they “have served the Erie community with love, grace and compassion,” according to the Mercy Center’s website. The honorees were recognized during an event on March 2 at the Mary D’Angelo Performing Arts Center at Mercyhurst Mercy Center Executive Jennie Hagerty (left) is shown here with Marybelle Martin (center), one of the Center’s 2022 Women Making History honorees, and a guest. University in Erie. The Women Making History honorees for 2022 are: Penny Blankenship Johnson, Mary Bula, Katrina Byrd, Elizabeth Edwards-Steen, Mary Kay Eisert Wlodarczyk, Susannah Weis Frigon, Amparito Hernandez, Marybelle Martin, Sister Michele Schroeck, Karen Seggi, Karen Tyler and Annette Wittmann. Mercy Center for Women is a sponsored ministry of the Sisters of Mercy that provides safe and supportive transitional housing, education, counseling and more for homeless women with or without children. For more information, visit www.mcwerie.org.

ERIE FEDERAL CREDIT UNION ANNOUNCES PLAN TO BUILD NEW BRANCH IN FAIRVIEW

Erie Federal Credit Union (Erie FCU), northwest Pennsylvania’s largest credit union, plans to open a new full-service branch in Fairview, Pennsylvania, tentatively scheduled for late this year. This will become the credit union’s 10th branch and first location in western Erie County. This also will be the credit union’s first new location since the adaptive reuse of the former Glenwood Elementary School and construction of its Glenwood corporate headquarters and branch on Peach Street, which opened in June 2017. Plans for the branch are still being finalized, but the project calls for new construction located along one of the most trafficked roads in the Fairview area. The credit union closed on the parcel slated for development in June 2020. Brian Waugaman, CEO of Erie FCU, said the Fairview branch is an essential piece of the credit union’s strategic plan to better serve its members by expanding our footprint across the region. “Our members spoke, we listened,” Waugaman said. “We already have thousands of members living and working within a few miles of this planned new location and we look forward to serving them with greater convenience while also welcoming new members, so they too can enjoy the benefits of credit union membership and 5-star service provided by Erie FCU.” The new branch will feature banking amenities such as multiple drive-up lanes, a drive-up ATM, a warm, welcoming environment and private offices for meeting with members. Waugaman added, “We are excited to invest in the Fairview community with a modern facility, which will greatly expand our current and future members’ access to their Erie FCU accounts. While we believe our mobile and online technology is top notch, on-the-go members also want in-person access to friendly, knowledgeable financial professionals.” Since its inception in 1936, Erie Federal Credit Union, has been serving its members in and around the Erie, Pennsylvania area. Erie FCU has grown its membership to over 68,000 with assets of more than $720 million. For more information, visit www.eriefcu.org.

THE ERIE COMMUNITY FOUNDATION WELCOMES THREE NEW BOARD TRUSTEES

The Erie Community Foundation has announced the addition of three new trustees to the board: Annē L. Lewis, director of Marketing at Red Letter Hospitality; Robin Scheppner, president and managing owner of American Tinning & Galvanizing (ATG); and, Karinna Vernaza, Ph.D., dean of College of Engineering and Business and a professor of Mechanical Engineering at Gannon University.

Lewis, a North East native, graduated from Penn State University with a bachelor’s degree in Communications and a minor in Entrepreneurship. As director of Marketing, she is responsible for advertising and communications for The Cork 1794, Molly Brannigan’s and The Skunk & Goat Tavern. She coordinates all social media platforms, website and menu development, advertising campaigns, public relations initiatives nurturing relationships with local businesses, and community engagement. Lewis is a member of the Athena Circle of Trust, Young Erie Professionals, Young Erie Philanthropists, Hamot Health Foundation Corporator, Perry Square Alliance Board Member, a 2019 graduate of Jefferson Civic Leadership Academy, 40 under 40 recipient, and a constant cheerleader to the Erie community. Scheppner holds many degrees and credentials, including a BFA from Denison University, teaching credentials from Cleveland State University and University of Utah, an associate degree in Building Construction from Salt Lake Community College. Scheppner has been involved in various service and benevolent organizations throughout her varied work experiences. She joined the Erie Women’s Fund of The Erie Community Foundation and recently served as their chair for three years. She became a panel adviser to five Athena Powerlink recipients over six years. She is an original member and is still serving on the Mayor’s Business Council for Joe Schember. She is a member of Rotary and an active United Way Board member. Currently, she chairs United Way’s Resource Development Committee and serves on the Executive Board of Women United for Community Schools. Vernaza, a native of Panama City, Panama, has authored more than 40 peer-reviewed publications centering on high-strain deformation of materials and engineering education. Recently, she has focused on systemic strategies for the retention and advancement of STEM faculty and students, and academic interventions to improve student success. Vernaza attended the U.S. Merchant Marine Academy and earned a Bachelor of Science in Marine Engineering Systems. After graduating, she was employed as a Ship Manager in Braswell Shipyards in Panama. She was awarded a Project Latin America 2000 Graduate Fellowship by the Kellogg Institute, the Coca-Cola Company, and the University of Notre Dame to perform graduate studies. She earned a master’s degree in Mechanical Engineering and a Ph.D. in Mechanical Engineering from the University of Notre Dame. Vernaza is active in the community, is an Erie Ambassador, serves on the Board of Directors for the Erie Technology Incubator, the ExpERIEnce Children’s Museum and PSNERGY, LLC. The three new trustees join Marcus Atkinson, Karen Bilowith, Rev. Donald L. Baxter Jr., M.D., William M. Hilbert Jr., Charles G. Knight, III CPA, Sarah Hagen McWilliams, Deborah W. Murphy, CFP®, David M. Tullio, Thomas A. Tupitza, Esq. and James R. Walczak, Esq. as members of the board.

CELEBRATING WOMEN IN BUSINESS!

At Northwest, we’re extremely proud of and inspired by the achievements of the women on our team. Collectively, they’ve made a positive impact, creating opportunities and enhancing the financial well-being of our customers and our communities. We’re committed to doing everything we can to encourage a more inclusive world — and we celebrate the incredible accomplishments of women everywhere!