J-E02003-17
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.
DISSENTING OPINION BY OTT, J.: FILED SEPTEMBER 20, 2018
I respectfully dissent. While the Majority provides a thoughtful analysis
of at-trial waiver of the attorney-client privilege, I believe the trial court did
not abuse its discretion in denying the motion for mistrial in light of 42 Pa.C.S.
§ 5928, which permits the privilege to be waived “upon the trial by the client,”
and the circumstances of this case. Furthermore, I am of the view that the
trial court properly refused to admit into evidence unsigned, undated
handwritten documents offered to prove Decedent’s testamentary intent on
grounds of hearsay and relevancy. Therefore, I would affirm the judgment
entered upon the grant of nonsuit in favor of Appellees. J-E02003-17
The issue of attorney-client privilege was present in this case from its
very inception. Decedent’s will, prepared by Yingst, was executed in March,
2000.1 Based upon Appellants’ alternative allegations of breach of contract
(third party beneficiary) and fraud in the amended complaint, Appellants
needed to prove either that Yingst failed to adequately advise Decedent
and Shirley regarding the effect of jointly-held property on the estate plan, or
that Shirley committed fraud by manipulating assets into jointly-held accounts
with right of survivorship to frustrate Decedent’s testamentary intent.2
Section 5928 of the Judicial Code, governing confidential
communications to attorney, 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 (emphasis supplied).
Pennsylvania law recognizes that “the right to assert the [attorney-
client] privilege is that of the client.” Commonwealth v. McKenna, 213 A.2d
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1 In March, 2000, Decedent would have been 80 years of age, based on his May, 1919 birth date. See Plaintiff’s Exhibits 5 and 6. Shirley would have been 75 years of age, as she was 90 years old at the time of the March, 2015 trial. See N.T., 3/16-18/2015, at 58.
2 It is unclear whether Appellants are contending Shirley acted fraudulently as to all jointly held assets or only as to the two certificates of deposit titled jointly with right of survivorship that were opened in 2004. See e.g., Amended Complaint, 9/1/2010, at ¶¶ 29 and 31; Appellants’ Brief at 11.
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223, 226 (Pa. Super. 1965), citing Estate of Dowie, 19 A. 936 (Pa. 1890).
See also Maleski by Chronister v. Corp. Life Ins. Co., 646 A.2d 1, 4 (Pa.
Cmwlth. 1994) (“The purpose of the attorney-client privilege is to benefit the
client, and accordingly, the client is the holder of the privilege.”).
Furthermore, “[t]he failure to assert a privilege constitutes a waiver thereof.”
Commonwealth v. Kauffman, 605 A.2d 1243, 1248 (Pa. Super. 1992). In
addition, “absent other considerations, a right or privilege once waived is
always waived and [] the defendant who waives a right or privilege cannot
thereafter object to the use that is made of the formerly privileged
communications.” Commonwealth v. Rosen, 42 A.3d 988, 995 (Pa. 2012)
(citation omitted).
In this case, attorney-client privilege arose during pre-trial discovery in
two contexts. First, Yingst asserted the privilege regarding any
communications with Shirley and Decedent. Second, Yingst did not assert the
attorney-client privilege regarding communications with Shirley when her
daughter was also present. Appellants’ counsel argued to the court prior to
trial that there were “irregular assertions of attorney client privilege” where
Yingst “disclosed some content of communications; but selectively declined to
disclose content when he was ‘not certain whether [Shirley’s] daughter had
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been present’” and, therefore, “negative inferences are warranted from the
selective attorney client communication disclosures.”3
At trial, in his opening statement, Appellants’ counsel discussed the
attorney-client privilege, as follows:
... Defendant Yingst claimed that he had gave [sic] a specific speech to each client regarding types of property and other such matters. However, when he was asked to provide a recitation of that speech in deposition, he said that it varied based on questions asked and declined to give one.
He admitted differences in simultaneously executed wills by spouses was unusual. He then asserted attorney/client privilege as to what was or was not stated by [Decedent] or [Shirley] as to any information provided to them by either.
This brings up a point, and I note it in the issue of credibility. Both Defendants exercised attorney/client privilege inconsistently in their depositions, and I believe in their testimony they will have to admit that they disclosed contents of communication regarding certain matters and chose not to regarding others. I believe that you may consider that in assessing their credibility.
N.T., 3/16-18/2015, at 37 (emphasis added). Thereafter, counsel for Yingst,
in his opening, told the jury:
… You’ve got Shirley, who is going to testify. She recalls the meeting with Mr. Yingst. They went in to see him to draft wills. They were going to take care of each other. And in the event they both died at the same time, it would just spill down to their children, plain and simple.
3 Plaintiffs’ Trial Brief, 3/10/2015, at 12, 14 (capitalization removed; emphasis in original); Plaintiffs’ Brief in Opposition to the Motions for Summary Judgment, 5/1/2014, at 12, 14 (capitalization removed; emphasis in original).
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You’re going to hear Mr. Yingst testify that he had the meeting with [Decedent]. He had the meeting with Shirley. They described what their asset picture was, that Mr. Yingst said you understand jointly held assets, joint bank accounts, your checking account, savings account, anything that you are both owners on, they don’t come inside the will.
Id. at 51–52.
Following the conclusion of Yingst’s counsel’s opening, and after the jury
had been excused for lunch, Appellants’ counsel moved for a mistrial, based
on Yingst’s counsel’s implication that Shirley would waive the attorney-client
privilege and Appellees would testify on matters they claimed were privileged
at their depositions. The trial court entertained argument and thereafter
denied the motion, and allowed the trial to proceed. Based upon my review,
I find no basis upon which to disturb the decision of the trial judge.
“Generally, the granting or refusal of a mistrial is a matter within the
discretion of the trial judge, and his or her decision will not be overruled by
an appellate court except for manifest, clear, or palpable error amounting to
an abuse of discretion.” Bugosh v. Allen Refractories Co., 932 A.2d 901,
914-15 (Pa. Super. 2007) (quotations and citation omitted). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Grady v. Frito-Lay, Inc., 839 A.2d
1038, 1046 (Pa. 2003).
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Here, for good reason, Shirley did not waive the privilege prior to trial
since, once waived, she would not be able to reinvoke it. See Rosen, supra,
42 A.3d at 995. However, as provided by statute, Shirley was free to waive
her attorney-client privilege “upon the trial.” 42 Pa.C.S. § 5928. Therefore,
it was reasonable that she would waive her privilege, if at all, only when
Appellants’ counsel argued to the jury in his opening statement that Appellees
“exercised attorney/client privilege inconsistently in their depositions” and the
jury “could consider that in assessing [Appellees’] credibility.” N.T.,
3/16-18/2015, at 37 (emphasis added). Under these circumstances, counsel’s
own trial strategy cannot create “unfair surprise.” Id. at 66.
Furthermore, it is clear that Appellants’ counsel believed prior to trial
that there had been “irregular” assertion of attorney-client privilege by
Appellees during discovery, and raised this argument on three separate
occasions — in deposing Yingst (Yingst Deposition, 9/13/2012, at 58) in
Appellants’ brief in opposition to the summary judgment motions filed by
Shirley and Yingst, and in Appellants’ trial brief. As discussed above,
Appellants’ counsel argued in his opening statement that Appellees’
inconsistent exercise of attorney-client privilege was a credibility matter.
Significantly, Appellants’ counsel explained to the court at sidebar that he “did
not file a motion to overrule the assertion of attorney/client privilege for the
simple reason that we are perfectly content to bind the parties to the
testimony that they gave during the depositions.” N.T., 3/16-18/2015, at 66.
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Given Appellants’ counsel’s belief there were “irregular” assertions of
the privilege in discovery and his trial strategy to attack Appellees’ credibility,
and in light of Section 5928 that allows waiver of the privilege “upon the
trial,” Appellants’ counsel had every reason prior to trial to file a motion in
limine to preclude Shirley’s waiver of the attorney-client privilege at the time
of trial. He did not do so.
The Majority states that Section 5928 is not dispositive of the issue and
analyzes the timing of the waiver in this case “in the context of our discovery
and pretrial rules.”4 I disagree with this approach and believe the cases cited
by the Majority are not helpful to the circumstances of the instant case.
The Majority cites Salsman v. Brown, 51 A.3d 892 (Pa. Super. 2012),5
which relied on Nationwide Mutual Ins. Co., v. Fleming, 924 A.2d 1259,
1265 (Pa. Super. 2007), for the proposition that “A litigant attempting to use
attorney-client privilege as an offensive weapon by selective disclosure of
favorable privileged communications has misused the privilege; waiver of the
privilege for all communications on the same subject has been deemed the
appropriate response to such misuse.” Salsman, 51 A.3d at 895 n.3. Here,
however, the issue does not concern the sanction of waiver for selective
4 Majority Opinion at 14.
5 See Majority Opinion at 15.
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disclosure, but rather concerns Shirley’s right to voluntarily waive the privilege
“upon the trial” pursuant to 42 Pa.C.S. § 5928.
Likewise, the Allegheny County case, Haas v. Bowman, 62 D. & C. 4th
1 (Allegheny Co. 2003), and certain federal cases cited therein, which are
discussed by the Majority,6 are inapposite. In Haas, the issue of at-trial
waiver of Fifth Amendment privilege arose in the context of a request for
sanctions against defendants who had asserted their Fifth Amendment
privilege in response to discovery requests. The Honorable R. Stanton Wettick
opined that “ordinarily, a party who has avoided discovery by asserting the
Fifth Amendment privilege will not be permitted on the eve of trial to waive
his or her Fifth Amendment protections for the purpose of testifying at trial.”
Id. at 15. Judge Wettick further explained:
at the request of a party, a court may set a time, based on a need of the parties to complete discovery, after which the party who has invoked the Fifth Amendment privilege will be barred from offering at trial his or her testimony on matters for which the Fifth Amendment was invoked to prevent discovery.
Id. (emphasis supplied), citing United States v. 4003-4005 Fifth Avenue,
55 F.3d 78, 85-86 (2d Cir. 1995); SEC v. Graystone Nash Inc., 25 F.3d 187,
191-92 (3d Cir. 1994); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553
(1st Cir. 1989); Dunkin' Donuts Inc. v. Taseski, 47 F. Supp.2d 867, 872-
6 See id. at 15-16.
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73 (E.D. Mich. 1999). Here, in contrast to Haas and the cited federal cases,
there was no request for a pretrial ruling to preclude Shirley’s waiver at trial.
The cases relied upon by Appellants in their brief,7 and discussed by the
Majority,8 are also unpersuasive in my view. Domako v. Rowe, 475 N.W.2d
30 (Mich. 1991), involved a Michigan statute, MCR 2.314(B)(1), that required
a party to timely assert the physician-patient privilege, or the privilege would
be lost. The Domako Court held the plaintiff had waived the physician-patient
privilege when she signed authorization forms permitting the release of
medical information, and she could not assert the privilege thereafter. In its
discussion, the Michigan Supreme Court noted MCR 2.314(B)(2) precludes
waiver of physician-patient privilege regarding medical information once
asserted by a party, and that the statute requires assertion or waiver at the
pretrial stage. Id. at 32 n.1, 35. Here, in contrast to the Michigan statute,
42 Pa.C.S. § 5928 allows waiver of the attorney-client privilege “upon the
trial.”
Furthermore, in Seattle Northwest Sec. Corp. v. Sdg Holding Co.,
812 P.2d 488 (Wash. App. 1991), and Int’l Tel. & Tel.Corp. v. United Tel.
Co. of Florida, 60 F.R.D. 177 (M.D. Fla. 1973), the issue of attorney-client
privilege was raised and addressed by the court before trial. In Seattle
7 See Appellants’ Brief, at 32.
8 See Majority Opinion at 16-18.
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Northwest, the trial court entered an order of contempt and imposed
sanctions, including default judgment, for defendant’s failure to comply with
discovery orders. The Court of Appeals of Washington reversed and held the
discovery sought was protected by the attorney-client privilege, and
remanded for a factual hearing as to whether respondent’s other contentions
justified an order allowing discovery of the privileged documents or testimony.
The court further required that on remand, defendants make an election
whether or not to call counsel to testify. Similarly, in Int’l Tel. and Tel.
Corp., the issue of waiver arose in the context of a motion to compel
discovery, and the Florida federal district court instructed, “if the defendant
intends to waive the privilege at trial by introduction of evidence within the
privilege, then the defendant will be required to allow discovery with regard
to matters material to that testimony.” 60 F.R.D. at 186. Thus, these cases
discuss at-trial waiver in the context of discovery disputes.
The Majority likens the instant situation to circumstances where there is
late amendment of an expert report or an expert attempts to testify beyond
the scope of the expert report.9 The Majority also relies on the duty to
supplement ongoing discovery to challenge Shirley’s at-trial waiver. However,
there is a substantive difference between the statute and discovery rules.
While it may be laudable to require a party to choose between asserting or
9 See Majority Opinion at 19.
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waiving privileged communications prior to completion of discovery, that
policy goes beyond our discovery rules and our statutory privilege. This Court
should not superimpose discovery rule concepts upon Section 5928 but
instead leave that consideration to the Legislature or the Rules Committee.
The record also reflects that during argument on the motion for mistrial,
Appellants’ counsel requested a preclusion order or postponement of the trial
to depose Shirley and Yingst since they were no longer asserting the privilege.
See N.T., 3/16-18/2015, at 65. However, as pointed out by the trial judge in
his Rule 1925(a) opinion, there had been six years of discovery in this case.10
Thus, Appellants’ counsel had ample opportunity prior to trial to resolve the
potential issue of waiver of attorney-client privilege that is permitted under
our statute.
Finally, I note that we apply a deferential standard of review to the
denial of a motion for mistrial and, for the reasons set forth above, I discern
no abuse of discretion by the trial court in denying Appellants’ motion for
mistrial and requests for a preclusion order or continuance.11 I disagree with
the Majority that “countenancing what occurred herein would only encourage
10 Trial Court Opinion, 8/10/2015, at 5 (unnumbered).
11Because I do not believe the trial court erred in denying the motion for mistrial and alternative requests for relief, I do not reach the harmless error analysis.
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parties to use privilege, which is not favored, to flout the discovery rules in
order to gain an unfair tactical advantage.”12 The Majority has taken the
position that last minute at-trial waiver of the attorney-client privilege violates
discovery. I believe, however, that given Appellants’ counsel’s stated intent
in his opening to use Appellees’ inconsistent exercise of the privilege to attack
credibility, this case does not represent a case where we should adopt the
Majority’s position against late waiver. Rather, I believe that affirmance
upholds the language of the statute and is warranted under the facts of this
case.
Nor do I agree that the trial court abused its discretion in refusing to
admit into evidence certain unsigned, undated handwritten notes proffered by
Appellants. These documents are described by Appellants as “documents
which identified Decedent’s assets and one on which there was a handwritten
calculation of what half of those assets would be.” Appellants’ Brief at 12.
Prior to trial, Shirley and Yingst each filed a motion in limine to preclude
the handwritten documents and oral testimony that they anticipated
Appellants would seek to introduce at trial to show Decedent’s testamentary
intent. Regarding the handwritten notes, Appellants responded, “All are
relevant and subject of proper authentication.” Plaintiffs’ Response to All
Defendants’ Omnibus Motions in Limine, at 4. Appellants maintained that
12 Majority Opinion at 22.
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“[t]he handwritten documents separately and together support the express
language of the will as intending ¼ of the joint property to pass to each of the
Plaintiffs.” Id. at 6. The pre-trial judge granted Appellees’ motions in limine,
ruling that the handwritten documents were inadmissible on the grounds of
authentication, hearsay, and relevance. See Order Granting Motions in
Limine, 3/6/2015.
While the coordinate jurisdiction rule applied to the pre-trial order,13
Appellants’ counsel, at trial, made supplemental proffers of authentication
evidence for the handwritten documents. See N.T., 3/16-18/2015, at 292-
293, 405-407. Following the testimony of John Gregury’s wife, Eileen,
Appellants’ counsel acknowledged that there was “an exclusionary order for
use of documents for the purpose of showing [Decedent’s] intent with regard
to the disposition of property,” but sought to use two of the handwritten
documents to “show value of the estate.” N.T., 3/16-18/2015, at 290.
Appellants’ counsel proffered additional authentication testimony, and argued
13 “Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). “Departure from the rule is allowed in ‘exceptional circumstances’ when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.” Id. (citation omitted). “In sum, while a judge must in most circumstances defer to the prior decision of another judge of coordinate jurisdiction, he or she is not required to do so in the limited and exceptional situation in which, inter alia, the prior judge’s order is clearly erroneous and would result in a manifest injustice.” Id. at 30.
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the date of death balances on the 2007 bank statements correlated to the
numbers on the handwritten documents found in Decedent’s house in 2008.
Yingst’s counsel objected, stating that the documents were undated, that they
did not correlate, and that aside from the authentication issue, the documents
were inadmissible based upon hearsay and relevance. The trial judge rejected
the proffer and adhered to the pre-trial judge’s ruling.
Later in the trial, after the testimony of Barbara Robey’s husband,
Wayne, Appellants’ counsel made another proffer, offering additional
authentication evidence that Wayne Robey would testify that Decedent gave
him a piece of paper in 2000, with names of banks, and “[i]t had amounts in
the bank, and it was on the same stationery as the other pieces of paper that
John [Gregury] found in the house” in 2008. Id. at 406. The trial judge
sustained Yingst’s counsel’s objection and allowed his prior ruling to stand.
Our standard of review is well settled:
Admission of evidence is within the sound discretion of the trial court and we review the trial court's determinations regarding the admissibility of evidence for an abuse of discretion. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.
Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015)
Here, Appellants proffered additional testimony of witnesses who could
identify the handwriting and stationery as Decedent’s for authentication
purposes, and therefore, I recognize there is no issue regarding
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authentication. However, aside from authentication, the trial court excluded
the documents on grounds of hearsay and relevancy.14
Under the Rules of Evidence, an out of court statement that is offered
for the truth of the matter asserted is excluded as hearsay. Pa.R.E. 801(c).
Statements include an oral or written assertion. Pa.R.E. 801(a). Hearsay is
inadmissible unless an exception applies. Pa.R.E. 802.
Appellants’ proffered evidence included one handwritten document that
listed amounts of various assets and calculated one-half value of those assets.
While the Majority finds that the handwritten documents are not hearsay
because Appellants offered the handwritten documents “for the fact of their
creation,”15 Appellants argue in their appellate brief these handwritten
documents were proffered as proof of Decedent’s testamentary intent.16
Therefore, because Appellants offered the handwritten documents and
14 In their brief, Appellants only address authentication and do not address the grounds for exclusion based on hearsay and relevance. See Appellants’ Brief, at 26-28.
15 Majority Opinion at 28.
16 See Appellants’ Brief at 23 (“The Trial Court Err[ed] in Precluding Oral and Written Evidence of [Decedent’s] Testamentary Intent”); id. at 26 (“Plaintiffs proffered notes they found at [Decedent’s] house which included an accurate list of his assets with calculations consistent with the ½, ¼, and ¼ distribution scheme which was called for in the will.”); id. at 28 (“The handwritten documents separately and together support the express language of the will as intending all property of whatever kind to [Shirley] and each of the Plaintiffs in the designated portions.”).
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calculations to show Decedent’s testamentary scheme — that is, the truth of
the matter asserted — I conclude the documents were hearsay.
While the hearsay rule is subject to exceptions, none appears to be
applicable to these documents that are unsigned, undated, without a clear
purpose and meaning. The Majority points to Pa.R.E. 803(3), which provides
an exception for the declarant’s then-existing state of mind.17 However, as
more fully discussed below, Decedent’s state of mind is not evident from the
documents. Therefore, I do not agree that the exception applies herein.
With regard to the issue of relevancy, Pa.R.E. 401 provides that
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Furthermore, Pa.R.E. 402 states that
“All relevant evidence is admissible, except as otherwise provided by law.
Evidence that is not relevant is not admissible.” Here, the handwritten
documents were not relevant because the date and reason for creation of the
documents cannot be determined.
Although the Majority posits it would be possible to determine a date for
the documents based upon other evidence of bank statement balances,18 I do
not believe the trial court was required to accept the handwritten documents
17 See Majority Opinion at 28 n.8.
18 See Majority Opinion at 28 n.7.
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based upon additional, proffered bank statements in the case. Moreover, the
reason for the documents is an unanswered question.
Appellants argued the documents show Decedent’s express intent had
been frustrated because he did not understand right of survivorship of joint
property. However, the documents do nothing to advance that issue. Even if
the trial judge had determined that the documents were properly
authenticated and that they correlated to the 2007 bank account balance
statements, the documents were properly excluded because they are not
relevant to the issue of what happened in 2000, when Decedent and Shirley
met with Yingst.
The Majority states that “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.”19 However, these
documents only show a calculation for one-half of the joint assets. There is
no dispositive language and no calculation for a one-fourth value of the joint
assets. As such, these documents are not relevant to the issue of what advice
Decedent received or understood regarding the right of survivorship in
jointly-held property.
19 Id. at 28 n.8.
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Furthermore, even if the documents show Decedent did a calculation,
the document is not probative because it is impossible to tell whether the
calculations stemmed from Yingst’s failure in 2000 to advise Decedent and
Shirley that property titled as joint tenants with right of survivorship would
not pass under the will, OR from Shirley’s actions to defraud Decedent, OR
from other reasons, such as Decedent and Shirley either misapprehending
Yingst’s advice OR forgetting Yingst’s advice in the four years between the
execution of their wills and the creation of the 2004 jointly-held accounts.
Therefore, in my view, the documents were inadmissible on grounds of
hearsay and relevance, and the trial court acted properly within its discretion
in refusing to admit the handwritten documents into evidence.
Accordingly, I dissent.
President Judge Gantman, Judge Lazarus and Judge Dubow join this
dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/20/2018
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