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2018 PA Super 261
JOHN M. GREGURY AND BARBARA J. : IN THE SUPERIOR COURT OF
ROBEY : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1467 MDA 2015
SHIRLEY M. GREGURAS AND ESTATE :
OF ADOLF GREGURAS, AND JAMES :
T. YINGST AND GUTHRIE, :
NONEMAKER, YINGST & HART :
Appeal from the Judgment Entered August 17, 2015
In the Court of Common Pleas of York County Civil Division at No(s):
2009-SU-003228-01
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.
OPINION BY BOWES, J.: FILED SEPTEMBER 20, 2018
Appellants John M. Gregury and Barbara J. Robey appeal from the
August 17, 2015 judgment entered after the trial court granted a nonsuit in
favor of Appellees Shirley M. Greguras (“Shirley”), individually and as
Executrix of the Estate of Adolf Greguras (“Decedent”), James T. Yingst,
Esquire, and Guthrie, Nonemaker, Yingst & Hart (“Law Firm”). At issue herein
is a question of first impression regarding the timing of the waiver of the
attorney-client privilege. After thorough review, we reverse the order
granting a nonsuit, and remand for further proceedings consistent with this
opinion.
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Decedent died on May 27, 2007. He was survived by his second wife of
thirty-five years, Shirley, and two adult children from his first marriage,
Appellants John Gregury and Barbara Robey. He also had a stepdaughter,
Sharon Beavers, Shirley’s daughter from a prior marriage.
Decedent’s Will dated March 2, 2000, which was prepared by Attorney
Yingst of the Appellee Law Firm, was admitted to probate. By its terms,
Shirley was designated Executrix of Decedent’s estate. Decedent’s Will
provided in pertinent part:
SECOND: I give all of my property, real, personal and mixed, of
whatsoever kind and wherever situate, as follows:
A. One-half (1/2) to my wife, Shirley M. Greguras. Should
my said wife predecease me, her share of my said
property shall be distributed equally to my two (2)
children, Barbara J. Robey and John M. Gregury, and my
wife’s daughter, Sharon L. Beavers.
B. One-fourth (1/4) to my daughter, Barbara J. Robey.
Should my said daughter predecease me, her share of
my said property shall be distributed equally to my son,
John M. Gregury, and my wife’s daughter, Sharon L.
Beavers.
C. One-fourth (1/4) to my son, John M. Gregury. Should
my said son predecease me, his share of my said
property shall be distributed equally to my daughter,
Barbara J. Robey, and my wife’s daughter, Sharon L.
Beavers.
Will of Adolph Greguras (“Will”), 3/2/00, at 1.
As of Decedent’s death, Decedent and Shirley had $330,000 in jointly-
held accounts, consisting of a joint checking account with a balance of
$113,423.26, and two jointly-held certificates of deposit opened in 2004, each
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with a balance of $111,466.79. See Plaintiffs’ Exhibit 7; N.T. Jury Trial, 3/16-
18/15, at 78. Other estate assets include two jointly-held certificates of
deposit at M&T Bank, with values at Decedent’s death of $14,747.53 and
$19,352.98. See Plaintiffs’ Exhibit 8. Based on the Pennsylvania Multiple-
Party Accounts Act (“MPAA”), sums remaining in joint accounts upon death of
a party to the account are presumed to belong to the survivor, unless there is
clear and convincing evidence of a different intent at the time the account is
created. Since the majority of Decedent’s assets were jointly held with
Shirley, Appellants stood to inherit nothing from Decedent’s estate except
some of his personal effects and household items.1
Appellants commenced this action against Shirley, Attorney Yingst, and
the Law Firm seeking recourse for the failure of their legacy.2 Their amended
complaint alleged fraud, breach of contract, professional negligence,
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1The marital home was not part of Decedent’s estate. By deed dated October
25, 1983, Decedent and Shirley conveyed a one-half undivided interest in the
marital home to themselves as tenants by the entireties, and an undivided
one-quarter interest each to John and Barbara as joint tenants with a right of
survivorship. Deed, 10/25/83. Thus, John and Barbara already owned an
undivided one-half interest in that property long before Decedent died.
Decedent’s and Shirley’s undivided one-half interest in the property passed to
Shirley as the survivor upon his death. This property was the subject of a
partition action following Decedent’s death, but prior to partition, the property
was sold and the proceeds distributed among the parties hereto.
2Pennsylvania recognizes a cause of action for intentional interference with
expectation of inheritance. See Restatement (Second) of Torts § 870. In
addition, an attorney is subject to liability to named legatees under a third
party beneficiary theory for a failed legacy attributable to the attorney’s
malpractice. Guy v. Liederbach, 459 A.2d 744 (Pa. 1983).
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intentional infliction of emotional distress, and sought, inter alia, imposition of
a constructive trust, accounting, attorney fees, and punitive damages.
Preliminary objections were sustained to the professional negligence count
and request for attorney fees.
The thrust of Appellants’ claims is that, despite Decedent’s clear intent
to benefit them expressed in his Will, all assets were held in joint name with
Shirley, and therefore passed to Shirley as the survivor. Appellants asserted
alternative theories as to why their legacy failed. Either Attorney Yingst failed
to advise Decedent and Shirley that jointly-held property, and specifically,
joint bank accounts, would presumptively pass to the survivor upon the death
of a party, and not under the Will; or, if he so advised them, Shirley used that
knowledge to place all assets in joint name to avoid any assets passing under
the Will. Appellants maintain that, “their father could not possibly have
intended they receive ‘1/4 of nothing.’” Appellants’ brief at 9.
Under either theory, evidence of what Decedent and Shirley disclosed
to Attorney Yingst about their assets and how they were held, and what
Attorney Yingst advised them about the disposition of jointly-held property
upon death, was highly relevant. However, those same communications were
subject to the attorney-client privilege, and Shirley invoked the privilege
throughout the discovery process to shield those communications from
Appellants.
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Shirley and Attorney Yingst each moved for summary judgment, but the
motions were denied on August 13, 2014.3 In advance of trial, the Honorable
Stephen P. Linebaugh ruled on motions in limine and objections to proposed
trial exhibits. The court precluded Appellants from presenting certain oral
testimony, ruling that it was inadmissible parol evidence offered to contradict
the clear and unambiguous testamentary intent expressed in Decedent’s Will.
The court also ruled that certain handwritten documents purportedly authored
by Decedent were inadmissible, concluding that they were unauthenticated,
hearsay, and irrelevant. The court also precluded Appellants from offering
John’s medical records in support of his claim for intentional infliction of
emotional distress without expert testimony.4
A jury trial commenced on March 16, 2015, before the Honorable David
E. Grine. During opening statements, counsel for Attorney Yingst advised the
jury that Shirley remembered what had been discussed with Attorney Yingst,
and that she would testify regarding those communications. Furthermore,
Attorney Yingst would testify that he advised Decedent and Shirley that joint
accounts would pass outside the Will. Appellants objected and asserted that
they were prejudiced by the late waiver of the privilege and the surprise
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3The Honorable John W. Thompson, Jr. presided over the case through the
denial of summary judgment.
4John Gregury made a claim for damages for emotional distress he sustained
due to alleged misrepresentations made by Shirley and Attorney Yingst that
Decedent had disowned him.
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testimony. They moved for a mistrial, or in the alternative, that the testimony
be excluded, or that trial be continued to permit them to depose Shirley and
Attorney Yingst to ascertain the nature of their testimony. The court overruled
the objection, denied the mistrial, and ignored the request to exclude the
testimony or permit limited discovery. The trial proceeded, and at the
conclusion of Appellants’ case-in-chief, the court granted a nonsuit upon
motion of Appellees.
Appellants timely filed post-trial motions, which the trial court denied.
A divided panel of this Court vacated the judgment, reversed the order
granting Appellees’ motion for nonsuit, and remanded the case for further
proceedings. We granted en banc review to consider the following issues,
which we have re-ordered for ease of disposition:
1. Did the trial court err in allowing [Shirley] to waive [the]
attorney[-]client privilege at trial after asserting it throughout
discovery and pre-trial processes?
2. Did the trial court err in denying reconsideration of the in limine
and trial exhibit orders as to evidence of testamentary intent?
3. Did the trial court err in denying reconsideration of the in limine
and trial exhibit orders regarding severe emotional distress of
[Appellant] John Gregury?
4. Did the trial court err in granting [Appellees’] motion for
nonsuit as to all counts and all [Appellees], where the motions
merely sought to relitigate legal issues rejected in the summary
judgment?
Substituted brief of Appellants at 3 (unnecessary capitalization omitted).
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This is an appeal from an order granting a motion for compulsory
nonsuit.
A motion for compulsory non-suit allows a defendant to test the
sufficiency of a plaintiff’s evidence and may be entered only in
cases where it is clear that the plaintiff has not established a cause
of action; in making this determination, the plaintiff must be given
the benefit of all reasonable inferences arising from the
evidence. When so viewed, a non-suit is properly entered if the
plaintiff has not introduced sufficient evidence to establish the
necessary elements to maintain a cause of action; it is the duty of
the trial court to make this determination prior to the submission
of the case to the jury.
Parker v. Freilich, 803 A.2d 738, 744-45 (Pa.Super. 2002). “When we
review the grant of a non-suit, we must resolve all conflicts in the evidence in
favor of the party against whom the non-suit was entered. A compulsory non-
suit is proper only where the facts and circumstances compel the conclusion
that the defendants are not liable upon the cause of action pleaded by the
plaintiff.” Brodowski v. Ryave, 885 A.2d 1045, 1060 (Pa.Super. 2005)
(quoting Shay v. Flight C Helicopter Servs., 822 A.2d 1, 13 (Pa.Super.
2003)).
Appellants contend that the trial court erred in failing to either grant a
mistrial or allow time to conduct additional discovery when Shirley waived the
attorney-client privilege at trial, after previously asserting it throughout
discovery. They stress the fundamental unfairness of permitting the attorney-
client privilege to be used as a shield to evade discovery, and as a sword to
facilitate trial by ambush. Appellants rely upon the Supreme Court’s recent
decision in In re Thirty-Third Statewide Investigating Grand Jury, 86
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A.3d 204, 216-17 (Pa. 2014), reiterating that the purpose of the privilege is
to “foster candid communications between counsel and client” for the benefit
of “the systematic administration of justice.” What occurred herein, according
to Appellants, undermined discovery and created “minefields of uncertainty in
the examination of witnesses at trial.” Substituted Brief of Appellants at 29.
Appellants compare the prejudice herein to the situation where an
expert report is amended right before trial or expert testimony exceeds the
scope of the report. In each case, we have recognized there is unfair surprise
to an adversary. Appellants contend that, by permitting the late waiver of the
attorney-client privilege and failing to accommodate their request for
additional discovery, they “were left with ‘a lady or the tiger’ dilemma: opening
the door and asking questions for which the answer was not known; or having
the witnesses testify without any record to contain their testimony.
Shirley and Attorney Yingst accuse Appellants of seeking a “rule that
would permanently bind a party” to an initial assertion of attorney-client
privilege. Shirley asserts that Appellants should have filed a motion in limine
prior to trial to obtain a ruling on the privilege, and having failed to do so, she
maintains they cannot claim unfair surprise. Similarly, Attorney Yingst faults
Appellants for not filing a motion to compel discovery of the communications
as to which the privilege was asserted. Finally, Shirley attributes Appellants’
predicament to a “tactical decision” to permanently bind Shirley to her initial
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assertion of the privilege, without “actually apply[ing] the fetters.”
Substituted brief of Shirley Greguras at 19.
The record reveals the following. Appellants served interrogatories and
requests for production of documents upon Appellees. They also deposed
Shirley and Attorney Yingst. Throughout the discovery process, Attorney
Yingst refused to answer questions calculated to elicit what information
Decedent and Shirley told him, and what he advised them, citing Shirley’s
invocation of the attorney-client privilege. The only exception he made was
for discussions he had with Shirley after Decedent’s death, when her daughter
Sharon was present, which is in accordance with the law. See
Commonwealth v. Small, 980 A.2d 549, 562 (Pa. 2009) (reiterating that
that the presence of third parties during confidential communications
generally negates the confidential nature of the communications). Shirley
declined to answer similar questions based on the assertion of the privilege.
Throughout the discovery process, Appellants argued that the assertion of the
privilege was selective and inconsistent, and therefore waived, but they never
formally challenged its application. As trial commenced on March 16, 2015,
the attorney-client privilege applied.
In opening statements, counsel for Appellants told the jury that
Appellees had exercised the attorney-client privilege selectively in their
depositions, choosing to disclose certain communications while refusing to
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divulge others. He further advised the jury, without objection, that it could
consider that inconsistency in assessing the credibility of the witnesses.
Counsel for Attorney Yingst did not mention the words “attorney-client
privilege” in his opening statement, although he implicitly announced its
waiver. He told the jury the following. Shirley recalled the meeting with
Attorney Yingst, and she would testify about what transpired. Shirley would
also testify that she and Decedent were going to take care of each other, and,
in the event that they both died at the same time, “it would just spill down to
their children, plain and simple.” N.T. Jury Trial, 3/16-18/15, at 52. In
addition, Attorney Yingst would testify that Decedent and Shirley described
their assets, and that they understood that jointly-held assets, such as joint
bank accounts, “anything that you are both owners on, they don’t come inside
the will.” Id.
At the conclusion of opening statements and outside the presence of the
jury, Appellants moved for a mistrial. Appellants objected to Appellees’ plan
to introduce the attorney-client communications that they had previously
refused to disclose during discovery into evidence. They maintained that
waiver was inconsistent with the prior assertion of the attorney-client
privilege, and that a mistrial was warranted. In the alternative, counsel for
Appellants asked the court to rule that Shirley and Attorney Yingst were not
permitted to testify at trial regarding matters that they had previously refused
to disclose based on privilege during their depositions.
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Counsel for Attorney Yingst countered that, “clearly what was said in
argument does not constitute grounds for a mistrial” as it is not evidence.5
Id. at 64. Attorney Yingst’s counsel charged further that Appellants knew of
the assertion of the attorney-client privilege and could have filed a motion in
limine to preclude such evidence. Appellees maintained that, having failed to
seek such a ruling pre-emptively, Appellants could not now complain. Id. at
64-65. Counsel for Attorney Yingst also stated that Shirley was present and
would be happy to advise the Court that the privilege had been waived, a
representation her lawyer confirmed.
Counsel for Appellants countered:
Your Honor, I will note that not only did they not inform me
prior to trial that they were going to change their position
regarding waiver but they had previously argued when I had
raised the argument that there had been a waiver because she
had testified to communications they argued that she could not
waive the privilege of [Decedent] Adolf Greguras. That was their
argument.
And, Your Honor, I can’t be expected to file a motion in
limine regarding attorney/client privilege that has been asserted
when they don’t tell me that they’ve changed their mind about
attorney/client privilege prior to trial, . . .
____________________________________________
5 The trial court is vested with discretion to grant a mistrial whenever
prejudicial conduct or remarks deprive a party of a fair and impartial trial.
See Commonwealth v. Culver, 51 A.3d 866, 872 (Pa.Super. 2012)
(affirming grant of mistrial where prosecutor persisted in improper conduct
during both opening statement and closing argument); see also Ferguson
v. Morton, 84 A.3d 715, 722 (Pa.Super. 2013) (recognizing that mistrial
based on plaintiff’s improper closing argument could be affirmed if prejudice
resulted).
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Id. at 65. At that point, Appellants’ counsel argued that, at “the very least[,]
trial should be adjourned and I should be permitted to depose both [Shirley
and Attorney Yingst] now that they want to waive the attorney/client privilege
because trial is not supposed to be by ambush.” Id. at 65.
The court denied the request for a mistrial, stating it was satisfied that
its previous instruction that statements of counsel are not evidence sufficed.
Id. at 67. The trial court ignored Appellants’ request that the testimony be
precluded, or that they should be permitted to depose Attorney Yingst and
Shirley to glean what their responses would be to questions that they had
previously refused to answer. Trial proceeded. Appellants called Shirley and
Attorney Yingst as on cross-examination, but did not venture into the unknown
realm of the attorney-client confidences. Counsel for Appellees reserved the
right to conduct the direct examinations of Shirley and Attorney Yingst during
their case-in-chief. Thus, the substance of the attorney-client
communications was not discussed or explored during Appellants’ case.
Appellees contend first that Shirley was permitted by statute to waive
the privilege at trial, and that Appellants did not demonstrate prejudice. They
argue further that, since Appellants do not point to any specific testimony at
trial or deposition for which the privilege previously was asserted, this issue
is waived on appeal. They attempt to distinguish cases from other
jurisdictions where the late waiver of the attorney-client privilege was held to
be prejudicial.
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We find no merit in Appellees’ waiver argument. Appellants repeatedly
sought discovery regarding the nature of attorney-client communications,
and, in each instance, Appellees asserted the privilege as the basis for not
disclosing those confidences. Appellants contend that they were afraid to
cross-examine Shirley and Attorney Yingst about those attorney-client
communications without a record, and sound trial tactics would support that
reluctance.
At issue is the propriety of permitting a litigant to assert the attorney-
client privilege to shield confidential communications from disclosure during
the discovery process, only to voluntarily waive the privilege at trial and
introduce those communications for her own purposes. The attorney-client
privilege is codified at 42 Pa.C.S. § 5928, and provides,
In a civil matter counsel shall not be competent or permitted
to testify to confidential communications made to him by his
client, nor shall the client be compelled to disclose the same,
unless in either case this privilege is waived upon the trial by the
client.
42 Pa.C.S. § 5928.
As Shirley maintains, the statutory language does not preclude the
waiver of the attorney-client privilege “upon the trial by the client.” Nor does
it mean that the privilege can only be waived at trial, although it is capable
of that construction. The language also means that counsel cannot testify
unless the privilege was waived prior to trial, perhaps during the course of
discovery. However, even if the language is construed as countenancing
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waiver of the attorney-client privilege at trial, that is not dispositive of the
issue. The propriety of the timing of the waiver must be viewed in the context
of our discovery and pretrial rules. An eleventh-hour waiver has considerable
potential to create unfair surprise and prejudice to the other party, and it is
the role of the trial court to prevent it by reasonable means.
In this Commonwealth, we adhere to rules that require parties to
lawsuits to engage in reasonable discovery. Discovery may be sought as to
“any matter, not privileged, which is relevant to the subject matter involved
in the pending action, whether it relates to the claim or defense of the party
seeking discovery or to the claim or defense of any other party,” and includes
inquiries regarding “the existence and location of documents or other tangible
objects and the identities of persons with knowledge of any discoverable
matter.” Pa.R.C.P. 4003.1(a). Hence, the issue of privilege, and its assertion
or waiver, usually arises at the discovery stage. Attorney-client
communications are protected from discovery if the privilege is claimed. If,
however, no privilege is asserted or confidential communications are
disclosed, the privilege is waived.
One of the primary purposes of discovery is to prevent the surprise and
unfairness of a trial by ambush, in favor of a trial on the merits. Parties may
discover the evidence that will be offered at trial, and assess the credibility of
witnesses. Consequently, discovery is calculated to facilitate early settlement
or narrow issues for trial.
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Although the propriety of a voluntary last-minute waiver of the
previously invoked attorney-client privilege appears to be a question of first
impression in this Commonwealth, our courts have taken a dim view of the
manipulation of privilege in other circumstances. For instance, claims of
selective disclosure, if valid, may result in waiver of the privilege with respect
to other evidence regarding the same subject matter. See Salsman v.
Brown, 51 A.3d 892, 895 n.3 (Pa.Super. 2012) (citing Nationwide Mut. Ins.
Co. v. Fleming, 924 A.2d 1259, 1262-63 (Pa.Super. 2007)) (acknowledging
subject matter waiver where a party uses the attorney-client privilege as “both
a sword and a shield” by selectively disclosing privileged documents that were
favorable, and withholding unfavorable documents on the same subject, but
declining to find it because documents disclosed were not privileged).
The consequences of the last minute waiver of a previously-invoked Fifth
Amendment privilege in a civil case was the issue in Haas v. Bowman, 62
Pa. D. & C.4th 1, 15 (Allegheny Co. 2003). The Honorable R. Stanton Wettick
held that where a party properly asserted the privilege, but subsequently
decided to waive it on the eve of trial, the party was precluded from offering
testimony on matters for which the privilege had been invoked due to the
unfair tactical advantage to that party. In arriving at his ruling, Judge Wettick
referenced decisions in other jurisdictions finding the practice unacceptable.
See United States v. 4003-4005 Fifth Avenue, 55 F.3d 78, 85-86 (2d Cir.
1995) (affirming district court’s finding that witness abused and manipulated
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privilege by selectively asserting it throughout, but seeking to waive it on eve
of trial); SEC v. Graystone Nash Inc.,25 F.3d 187, 191-92 (3d Cir. 1994)
(recognizing belated waiver of Fifth Amendment privilege caused unfair
disadvantage to opposing party who had conducted discovery, prepared his
case without the benefit of knowledge of the contents of the privileged
information, and who may have lost the opportunity to refute it); Gutierrez-
Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (affirming order
barring witness from testifying at trial due to his assertion of Fifth Amendment
privilege to refuse to testify during discovery); Dunkin’ Donuts Inc. v.
Taseski, 47 F. Supp.2d 867, 872-73 (E.D. Mich. 1999) (holding when Fifth
Amendment privilege claimed, litigant is barred from introducing other
evidence on that issue).
The last-minute waiver of privilege was discussed in the context of the
physician-patient privilege in a medical malpractice case in Domako v. Rowe,
475 N.W.2d 30, 33 (Mich. 1991). The Supreme Court of Michigan discussed
the statute providing that, “if a party asserts the physician-patient privilege
regarding medical information, that party may not thereafter present any
evidence relating to the party's medical or physical condition.” MCR
2.314(B)(2). The court recognized that the rationale for the statute was that
it was “patently unfair for a party to assert [physician-patient] privilege during
pretrial proceedings, frustrate rightful discovery by the other party, and then
voluntarily waive that privilege at trial, thereby catching the opposing party
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unprepared.” Id. The court reaffirmed that the purpose of the physician-
patient privilege was “to protect the confidential nature of the physician-
patient relationship and to encourage the patient to make a full disclosure of
symptoms and conditions.” Id. at 33 (citations omitted). Waiver, on the
other hand, was intended “to prevent the suppression of evidence.” Id. The
Domako Court concluded that:
An attempt to use the privilege to control the timing of the release
of information exceeds the purpose of the privilege and begins to
erode the purpose of waiver by repressing evidence. Both
consequences are anathema to the open discovery policy of our
state. The statute and the court rule both allow waiver, thus
striking an appropriate balance between encouraging confident
disclosure to one’s physician and providing full access to relevant
evidence should a charge of malpractice follow treatment.
Id. at 33.
The voluntary eleventh-hour waiver of the attorney-client privilege was
at issue in Seattle Northwest Sec. Corp. v. Sdg Holding Co., 812 P.2d 488
(Wash.App. 1991). The Washington appellate court acknowledged that its
civil rules did not require a party to elect whether it would offer testimony in
order to avoid waiving the attorney-client privilege. However, since the rules
were intended, at least in part, “to avoid ‘trial by ambush’ and to require that
parties cooperate by not frustrating the purposes of discovery[,]” the court
noted that “[a]llowing a party to sit on the fence and not specify whether a
potential witness will testify in order to preserve the advantages of not
testifying while enjoying the future possibility of allowing that testimony
frustrates the other party’s attempt to construct an adequate case.” Id. at
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499. Hence, that court extended the rule to require the party asserting the
attorney-client privilege, upon remand, to “make an election prior to any
deadline for the completion of discovery as to whether or not the privilege will
be voluntarily waived at trial.” Id. “[I]f the privilege is to be waived,” that
party must “provide to opposing counsel a statement of the subject matter of
the testimony.” Id.
The same concern for fundamental fairness prompted a federal district
court in Florida to hold that if a party “intends to waive the [attorney-client]
privilege at trial by the introduction of evidence within that privilege, then the
[party] will be required to allow discovery with regard to matters material to
that testimony.” Int’l Tel. & Tel. Corp. v. United Tel. Co. of Florida, 60
F.R.D. 177, 186 (M.D. Fla. 1973). The court further cautioned that the party’s
refusal to permit discovery of confidential matter would preclude it from
introducing it at trial.
Herein, the trial court failed to appreciate the prejudice to Appellants
from Shirley’s last-minute waiver of the privilege. If it had, we believe it could
have alleviated the prejudice without declaring a mistrial. The trial court could
have precluded Appellees from introducing at trial the communications that
were the subject of the earlier exercise of the privilege, or alternatively, briefly
halted the proceedings to permit limited discovery of Shirley and Attorney
Yingst. The trial court’s failure to acknowledge the unfair surprise and remedy
its prejudicial impact upon Appellants’ trial strategy, their ability to effectively
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cross-examine Appellees, and the testimony of Appellants’ expert, requires a
new trial.
We agree with Appellants that the prejudice herein is much like the
situation where discovery violations result in unfair surprise and prejudice to
the opposing party. Pennsylvania Rule of Civil Procedure 4003.5 requires
parties to timely submit their expert reports, and confines the expert’s
testimony to the scope of those reports, to avoid unfair surprise. See
Woodard v. Chatterjee, 827 A.2d 433, 445 (Pa.Super. 2003) (citing
comment to Rule 4003.5(c) for proposition that the rule is intended “to
prevent incomplete or ‘fudging’ of reports which would fail to reveal fully the
facts and opinions of the expert or his grounds therefor”); see also Jones v.
Constantino, 631 A.2d 1289, 1294 (Pa.Super. 1993) (noting the fair scope
rule “disfavors unfair and prejudicial surprise”). In such situations, trial courts
may exclude the offending testimony entirely or, in some cases permit the
opposing party to depose the witness during trial.
Furthermore, the waiver of the attorney-client privilege at trial
potentially violates the duty of a party to timely supplement discovery
responses if it becomes aware of subsequent facts or circumstances that make
prior answers incorrect. See Pa.R.C.P. 4007.4. Failure to timely supplement
may result in the exclusion of that previously-undisclosed subject matter. Id.;
see also Pa.R.C.P. 4019(i) (precluding a witness whose identity was not
revealed as provided from testifying at trial on behalf of the defaulting party).
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The common thread running through these rules and cases is that one
party should not be permitted to withhold information from the other party
and then surprise that party with it at trial. Implicit is the awareness that a
lack of notice deprives the other party of the opportunity to plan his trial
strategy. The fact that the instant case involves privileged communications,
rather than rule-mandated disclosures, does not warrant different treatment.
Herein, the trial court should have either excluded the testimony that was the
subject of the privilege or, at the very least, permitted Appellants to depose
Appellees to discover the substance of the undisclosed communications.
Nor can the trial court’s abuse of discretion be deemed harmless as the
full impact of the last-minute waiver cannot be measured. The revelation in
Appellees’ opening statements that the privilege was waived completely
altered the landscape of the case. Based on the prior assertion of the
privilege, Appellants anticipated no direct evidence from either Attorney Yingst
or Shirley regarding their discussions. Without the benefit of discovery, they
were not prepared to challenge Appellees’ credibility and ability to recall
discussions that had occurred fifteen years before. If Appellants had ventured
into the substance of the heretofore forbidden attorney-client
communications, they would have been proceeding blindly without any
knowledge of what the witnesses would say or any ready means to challenge
it.
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In addition, the anticipated revelation of the contents of the
communications blindsided Appellants’ legal expert, Bruce Warshawsky,
Esquire, on cross-examination at trial. His testimony was limited to the scope
of his expert report, which was based upon his review of documents and the
deposition testimony. Although Attorney Yingst refused to testify in deposition
regarding his specific advice to Decedent and Shirley based on the attorney-
client privilege, counsel for Attorney Yingst vigorously cross-examined
Attorney Warshawsky about the effect on his opinion if, hypothetically, the
attorney had testified or were to testify that he explained the difference
between probate and non-probate assets to Decedent and Shirley. N.T. Jury
Trial, 3/16-18/15, at 537. Counsel for Attorney Yingst was permitted to ask
the witness, “So if [Attorney Yingst] testified that he explained the difference
between joint and non-joint assets, what’s the fault?” Id. at 549. Appellants’
counsel objected that the questions created the false impression that Attorney
Yingst had testified that he told Decedent and Shirley about jointly-held assets
when he had instead asserted the privilege to refuse to divulge the contents
of the discussion, and renewed his objection to the late waiver of the attorney-
client privilege. Id. at 550. Furthermore, the cross-examination implied that
the expert’s opinion would change when Attorney Yingst testified as to the
facts. (“So if Mr. Yingst testifies that [he discussed with Shirley and
[Decedent] the fact that all of their assets were held jointly and that
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[Decedent]’s will did not bequeath any of that property to Appellants], . . .
that would change your opinion?”) Id. at 556-57.
Moreover, we reject Appellees’ contention that Appellants should have
filed a motion in limine to obtain a ruling on the privilege, or be precluded
from complaining when Shirley waived it at trial. A motion in limine is an
optional tool available to the parties to obtain pretrial rulings on the
admissibility or inadmissibility of certain evidence. A pretrial ruling on such a
motion can provide some certainty as to what evidence will be admitted or
precluded, and therefore assist in strategy decisions and provide parameters
for counsel in opening statements. Motions in limine also permit the court to
rule outside the presence of the jury, often with the benefit of supporting legal
authority, and obviate the need to object at trial. By not filing such a motion,
however, a party has not waived his right to object to evidence or to seek
relief. Certainly, Appellants cannot be deemed to have waived any right to
object at trial to evidence that, due to the invocation of the privilege, was not
part of the case prior to trial.
Finally, countenancing what occurred herein would only encourage
parties to use privilege, which is not favored, to flout the discovery rules in
order to gain an unfair tactical advantage. On that basis alone, a new trial is
required. In addition, however, we find merit in Appellants’ claim that the
trial court committed reversible error in precluding the admission of
documentary evidence tending to show that Decedent did not understand that
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his half of joint property would not devolve per the Will, from which one could
reasonably infer that Attorney Yingst did not so advise him.6 Our analysis
follows.
Throughout discovery, Shirley and Attorney Yingst refused to answer
any questions about the discussions at their two meetings regarding the wills
of Shirley and Decedent. In support of their contention that Attorney Yingst
did not ascertain what assets Decedent and Shirley possessed, how they were
held, or explain that jointly-held property would pass outside the Will.
Appellants pointed to the fact that, although Shirley testified at her deposition
that the attorney took notes during their meeting, there were no notes in his
file. The attorney admitted that he did not use a form to ascertain the nature
of the testators’ assets. Finally, Appellants offered expert legal opinion that,
based upon the failed legacy, and a legal file that did not contain any
information about the assets and how they were held, Attorney Yingst had
breached his duty to advise Decedent that one-quarter of his jointly-held
assets would not pass to each of Appellants.
In addition to the foregoing, Appellants proffered two handwritten
documents, purportedly prepared by Decedent, one listing his various
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6 Appellants maintained throughout that Decedent’s testamentary intent to
benefit them was clear from his Will, and that oral testimony and documents
were not offered to vary the terms of the Will. Appellants contend that their
legacy failed either because Attorney Yingst breached his contractual duty to
effectuate Decedent’s testamentary intent or because Shirley manipulated the
joint accounts to frustrate Decedent’s intent.
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accounts and their balances, the other listing assets and a handwritten
calculation of one-half of each asset. Appellants maintained that Decedent’s
calculation of a one-half interest indicated that he did not understand that the
surviving joint owner, herein Shirley, would presumptively be entitled to all of
the funds. Appellees objected to the admission of the documents as
unauthenticated hearsay improperly offered to vary Decedent’s intent as
expressed in the Will. A judge ruled just prior to trial that they were
inadmissible on authentication grounds. When Appellants subsequently asked
the trial court to consider additional proof of authentication, the court denied
them that opportunity, finding that the documents also constituted
inadmissible hearsay and were irrelevant.
Our standard of review of a trial court evidentiary ruling is as follows:
When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of the law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Stapas v. Giant Eagle, Inc., 153 A.3d 353, 367-68 (Pa.Super. 2016)
(quoting Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.Super. 2008)).
Implicated herein are issues of authentication, hearsay, and relevancy,
which we will address in turn. Authentication is codified in Pennsylvania Rule
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of Evidence 901, and provides in pertinent part that, “The requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question
is what its proponent claims.” Pa.R.E. 901(a). That Rule also provides that
the testimony of a witness with personal knowledge that a matter is what it is
claimed to be may be sufficient to authenticate or identify the evidence.
Pa.R.E. 901(b)(1); id. at Comment (citing Commonwealth v. Hudson, 414
A.2d 1381 (Pa. 1980)); Commonwealth v. Koch, 39 A.3d 996 (Pa.Super.
2011) affirmed by an equally divided Supreme Court, 106 A.3d 705 (Pa.
2014); In the Interest of F.P., 878 A.2d 91, 93-94 (Pa.Super. 2005).
A document may be authenticated by direct proof and/or by
circumstantial evidence. Commonwealth v. Brooks, 508 A.2d 316, 318
(Pa.Super. 1986). “Proof of any circumstances which will support a finding
that the writing is genuine will suffice to authenticate the writing.” Id. at 319
(quoting McCormick, Evidence § 222 (E. Cleary 2d Ed. 1972)).
Where there is a question as to any writing, “the opinion of any person
acquainted with the handwriting of the supposed writer” is relevant for that
purpose. 42 Pa.C.S. § 6111(1). Rule 901(b) provides that “[a] non[-]expert’s
opinion that handwriting is genuine, based on a familiarity with it that was not
acquired for the current litigation,” is competent evidence.
In addition, circumstantial evidence may be sufficient to authenticate a
document. See McCormick, Evidence, supra at §§ 219-21 (discussing
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circumstantial evidence and cases cited therein); see e.g., Commonwealth
v. Nolly, 138 A. 836 (Pa. 1927) (letters authenticated by contents known only
to sender and recipient); Commonwealth v. Bassi, 130 A. 311 (Pa. 1925)
(finding unsigned letter authenticated by defendant’s nickname written on it,
along with contents indicating knowledge of matters familiar to both
defendant-sender and witness-recipient).
A proponent of a document need only present a prima facie case of some
evidence of genuineness in order to put the issue of authenticity before the
factfinder. Nolly, supra at 837. The trial court makes the preliminary
determination of whether or not a prima facie case exists to warrant its
submission to the finder of fact. Brenner v. Lesher, 2 A.2d 731, 733 (Pa.
1938). If that threshold is met, the jury itself considers the evidence and
weighs it against that offered by the opposing party. Id.
The trial court precluded the documentary evidence on the ground that
it could not be authenticated. We disagree. The record demonstrates that
although the proffered documents were undated and unsigned, John Gregury
testified in his deposition that he was familiar with Decedent’s handwriting and
that the writing on the documents was Decedent’s. He also testified that the
stationery was the type used by Decedent. John’s familiarity with Decedent’s
handwriting was sufficient to make out a prima facie case of authentication.
In addition, there was circumstantial evidence tending to authenticate
the documents. The writing consisted of a list of accounts and assets owned
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by Decedent and Shirley, together with their balances at a point in time that
could have been pinpointed with reference to financial records, and which
depicted the calculation of the value of one-half of those assets.7 The contents
of the writing likely were known only to Decedent and Shirley. Based on the
foregoing, we find both direct and circumstantial evidence sufficient to
establish a prima facie case for authentication of the documents. Thus, any
dispute as to their authenticity was for the jury.
The trial court also dismissed Appellants’ proffer of the documents on
the ground that they constituted inadmissible hearsay. Pennsylvania Rule of
Evidence 802 provides that “Hearsay is not admissible except as provided by
these rules, by other rules prescribed by the Pennsylvania Supreme Court, or
by statute.” Pa.R.E. 802. “Hearsay” is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Pa.R.E. 801(c). A “statement,” is an
oral or written assertion. Pa.R.E. 801(a). A “declarant” is a person who makes
a statement. Pa.R.E. 801(b). Any “out[-]of[-]court statement offered not for
its truth but to explain the witness’s course of conduct is not hearsay.”
Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007) (citing
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7 We reject the trial court’s finding that the documents were irrelevant
because they were undated. As we concluded supra in our discussion of
authentication, it was possible to ascertain when the documents were written
by comparing the balances reported to bank statements.
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Commonwealth v. Sneed, 526 A.2d 749, 754 (Pa. 1987)); accord
Commonwealth v. Busanet, 54 A.3d 35, 68-69 (Pa. 2012); Koch, supra.
Appellants offered the documents to show that Decedent calculated the
value of a one-half interest of his jointly-held assets, a computation that
arguably had no meaning if Decedent knew or had been advised that the entire
balance of the accounts would go to the survivor. Hence, the documents were
not offered for the truth of their contents, as the accuracy of the accounts
listed and their balances was not germane, but for the fact of their creation.
Thus, the documents were not hearsay.8
Moreover, we find that the erroneous exclusion of the documents was
not harmless error. Appellants’ legal expert, Attorney Warshawsky, relied
upon the two documents in arriving at his opinion that Attorney Yingst failed
to properly advise Decedent “that based on the status of his estate and his
assets at the time that wills were drafted, that his intent would not be carried
out.” N.T. Jury Trial, 3/16-18/15, at 529. The exclusion of the documents
substantially weakened that expert opinion. In addition, the expert could not
point to those documents on cross-examination as tending to undermine
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8 Even if the documents were deemed to be hearsay, they fell within the
exception for the declarant’s then-existing mental state. See Pa.R.E. 803(3).
Once it was demonstrated that Decedent was the author of the documents,
their relevance lay in the fact that Decedent thought there was a reason to
calculate the value of one-half of the joint assets. Such evidence was
probative on the issue whether Attorney Yingst advised Decedent and Shirley
about jointly-held property.
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Attorney Yingst’s anticipated testimony that he fully explained jointly-held
property to Decedent and Shirley. Since such evidence, if admitted, would
have precluded the entry of a nonsuit, the error cannot be deemed harmless.
Appellants’ third issue challenges the propriety of the court’s pretrial
ruling precluding them from introducing John’s medical records, psychiatric
evaluations, and the like, in support of his claim for intentional infliction of
emotional distress. Appellants maintain that John’s medical records were
sufficient to show that he suffered extreme emotional distress as a result of
Shirley’s conduct. The trial court ruled that expert testimony was required to
establish the existence of emotional distress and its cause. Since the issue
could recur at the new trial, we will address it.
We find that the trial court correctly held that expert medical testimony
was required to substantiate John’s emotional distress claims. Our courts
have long held that “Given the advanced state of medical science, it is unwise
and unnecessary to permit recovery to be predicated on an inference based
on the defendant’s ‘outrageousness’ without expert medical confirmation that
the plaintiff actually suffered the claimed distress.” Kazatsky v. King David
Memorial Park, 527 A.2d 988, 995 (Pa. 1987). Expert testimony is required
“both as to fact of the distress itself and as to the causation element.” Wecht
v. PG Publ. Co., 725 A.2d 788, 791 (Pa.Super. 1999). Medical records alone
are insufficient for that purpose. Hence, the trial court properly excluded the
proffered evidence.
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In light of our remand for a new trial, Appellant’s fourth issue regarding
the trial court’s entry of a nonsuit is moot. For all of the foregoing reasons,
we vacate the judgment, reverse entry of nonsuit, remand to permit additional
discovery from Attorney Yingst and Shirley regarding formerly confidential
communications, and supplementation of expert reports, and a new trial.
Judgment vacated. Order reversed. Case remanded for further
proceedings consistent with this opinion. Jurisdiction relinquished.
President Judge Emeritus Bender, Judge Shogan, Judge Olson, and
Judge Stabile join this opinion.
Judge Ott files a dissenting opinion in which President Judge Gantman,
Judge Lazarus and Judge Dubow join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2018
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