In re Estate of Wood

818 A.2d 568
CourtSuperior Court of Pennsylvania
DecidedFebruary 25, 2003
StatusPublished
Cited by30 cases

This text of 818 A.2d 568 (In re Estate of Wood) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Wood, 818 A.2d 568 (Pa. Ct. App. 2003).

Opinion

BECK, J.:

¶ 1 In this appeal from the trial court’s order compelling an attorney to testify and produce reports, we review the attorney-client privilege, the work product doctrine and the lawyer’s duty of confidentiality to clients. After careful consideration, we affirm and remand the matter to the trial court with instructions.

If 2 Catherine Wood (Wood) died on June 17, 1995. Her two daughters, Patricia Zabroski (Zabroski) and Bonita Walsh-Sukus (Walsh-Sukus) have been engaged in litigation over her estate since that time. The record reveals that a last will and testament signed by Wood in February of 1987 (the 1987 Will) provided that all of her assets be divided between her daughters in equal shares.

¶ 3 Throughout the period of 1990 through early 1995, Wood suffered several physical and mental setbacks. In 1993, guardianship proceedings commenced and the trial court appointed attorney Joseph M. Cosgrove (Cosgrove) to represent Wood. In March of 1995, after the guardianship proceedings had been initiated, withdrawn and begun again, Cosgrove was named temporary guardian of the person of Wood and Walsh-Sukus was named temporary guardian of the estate of Wood. Three months later Wood died.1 Thereafter, a second will and testament dated in [570]*570May of 1991, (the 1991 Will) was offered for probate. The 1991 Will left all of Wood’s estate to Walsh-Sukus and nothing to Zabroski.

¶ 4 Zabroski challenged the 1991 Will and filed suit, alleging that it was the product of undue influence by Walsh-Su-kus. Zabroski sought to have the 1987 Will reinstated and insisted that her mother had suffered from a weakened intellect and lacked testamentary capacity to execute the 1991 Will. At a trial on the issues, Zabroski offered the testimony of friends and family members who described Wood’s mental deterioration from 1989 forward. Zabroski also presented the expert testimony of Dr. Mark Novitsky (Novitsky), a psychiatrist and neurologist who examined Wood in 1994. Novitsky opined that Wood was profoundly cognitively impaired in 1994. He also testified that based on his review of her prior medical records, Wood suffered from a weakened intellect, was susceptible to influence and was without testamentary capacity at the time the 1991 Will was signed.

¶ 5 According to Walsh-Sukus, her mother’s change of heart in 1991 was due to a dispute she had with Zabroski over jewelry Zabroski failed to return to her mother. With- regard to Wood’s mental fitness, Walsh-Sukus presented Wood’s physicians, the attorney who drafted the 1991 Will and personnel from the facility at which Wood resided. All of these witnesses testified that although Wood had experienced some mental deterioration, she was functioning well in 1991 and was able to determine and articulate her wishes. Among these witnesses were Dr. David Owens (Owens) and Dr. Mitchell Gross (Gross), both of whom had treated Wood in 1991.

¶ 6 The trial court ultimately found for Walsh-Sukus and denied Zabroski’s claim of undue influence. However, on appeal, a panel of this court issued a memorandum opinion that reversed the judgment and awarded Zabroski a new trial. The basis for the reversal was that the expert testimony of Owens and Gross should not have been admitted because Walsh-Sukus had not provided Zabroski with expert reports prior to trial. Relying on Pa.R.C.P. 4003.5(c), the panel held that the doctors’ testimony constituted unfair surprise, particularly since their trial testimony “was, to a troubling extent, inconsistent with [Wood’s] medical records, including their [the doctors’] own contemporaneous clinical observations [noted in the records].” In Re Estate of Wood, No. 448 Harrisburg 1998, at 9, 745 A.2d 51 (filed June 29, 1999).

¶ 7 On remand, Walsh-Sukus sought to depose attorney Cosgrove in an effort to acquire information Cosgrove learned from Novitsky, who had testified on behalf of Zabroski at the prior trial, and other doctors Cosgrove interviewed while representing Wood in the guardianship proceedings.2 Cosgrove refused to give such testimony and Walsh-Sukus filed a motion to compel. The trial judge granted the motion and entered an order requiring Cos-grove to give testimony at deposition or trial limited to the following areas of inquiry:

1. The names and addresses of all physicians with whom -Cosgrove met and discussed Wood’s medical treatment and/or conditions, the date upon which said meeting occurred, the substance of [571]*571any and all discussions held at each appointment with each physician, the number of reports obtained from each physician and copies of all such reports; and 2. The identity (names, addresses and telephone numbers) of any person, other than physicians with whom Attorney Cosgrove met, having knowledge of any discoverable matter with reference to any claim or defense of any party to the action.

See Trial Court Order dated 11/5/01.3

¶ 8 Cosgrove filed an appeal from the order, relying on the collateral order doctrine to validate his right of appellate review. See Pa.R.A.P. 313; Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because Cosgrove’s claims of privilege satisfy the requirements of the collateral order doctrine, the issue is ripe for appellate review. See Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999) (permitting appeal from order mandating discovery of documents claimed to be privileged); Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d 866 (Pa.Super.2002) (same). The issues raised involve questions of law and so we must decide whether the trial court erred as a matter of law in requiring Cosgrove to give testimony. Gould v. City of Aliquippa, 750 A.2d 934, 936 (Pa. Commw.2000).

¶ 9 Cosgrove asserts three bases for his challenge to the trial court’s order: the attorney-client privilege, the work product doctrine and the duty of confidentiality a lawyer has to his client. We will address each separately to determine which, if any, apply to the items set out in the trial court’s order.

¶ 10 “The attorney-client privilege has been a part of Pennsylvania law since the founding of the Pennsylvania colony, and has been codified in our statutory law.” Commonwealth v. Noll, 443 Pa.Super. 602, 662 A.2d 1123, 1126 (1995), appeal denied, 543 Pa. 726, 673 A.2d 333 (1996). The relevant provision directs:

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.A. § 5928.

¶ 11 The attorney-client privilege, “one of the most revered of common law privileges,” Commonwealth v. Maguigan, 511 Pa. 112, 511 A.2d 1327

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Bluebook (online)
818 A.2d 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-wood-pasuperct-2003.