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2018 PA Super 261

JOHN M. GREGURY AND BARBARA J.

ROBEY

Appellants

v.

SHIRLEY M. GREGURAS AND ESTATE OF ADOLF GREGURAS, AND JAMES T. YINGST AND GUTHRIE, NONEMAKER, YINGST & HART :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1467 MDA 2015

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

,

Esquir e , and Guthrie, Nonemaker, Yingst & Hart (“ Law Firm”)

. At issue herein

is a question of firs t 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.J

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Decedent died on May 27, 2007. He was su rvived 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 W ill dat ed March 2, 2000, which was prepared by Attorney

Yingst of the Appellee L aw F irm, was admitted to probate. By its terms,

Shirley was designated Executrix of Decedent’s estate. Decedent’s W ill

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. Gr egury, 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 , eachJ

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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 evi dence 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 La w F irm seeking recourse for the failure of their legacy. 2 Their amended

complaint alleged fraud, breach of contract, professional negligence,

_________________ __________ ______ ____ _______

1 The 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 Shir ley’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.

2 Pennsylvania 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 thi rd party beneficiary theory for a failed legacy attributable to the attorney’s malpractice. Guy v. Liederbach , 459 A.2d 744 (Pa. 1983).J

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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 t he 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 W ill, 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 l egacy 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 W ill; or, if he so advised them, Shirley used that

knowledge to place all assets in joint name to avoid any assets passing under

the W ill

. Appellants maintain that, “their father could not possibly have

intended they receive ‘1/4 of nothing.’” Appellant s ’ brief at 9.

Under eithe r 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 sa me communications were

subject to the attorney

- client privilege, and Shirley invoked the privilege

throughout the discovery process to shield those communications from

Appellants.J

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Shirley and Attorney Yingst each moved for summary judgment, but the

motio ns 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 w as in admissible parol evidence offered to contradict

the clear and unambiguous t estamentary intent expressed in Decedent’s Will.

The court also ruled that certain handwritten documents purportedly authored

by Decedent were inadmissible

, concluding that the y we re 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 regardi ng th ose 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 t he surprise

_________________ __________ ______ ____ _______

3 The Honorable John W. Thompson, Jr. presided over the case through the denial of summary judgment.

4 John 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.J

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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 a n d

Attorney Yingst to ascertain the nature of their testimony. The court overruled

the o bjection , 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 non suit 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 t he following issues

,

which we have re

- ordered for ease of disposition :

1. Did the t rial c ourt err in allowing [Shirley] to waive [the]
attorney [

- ] client privilege at trial after asserting it throughout discovery and pre

- trial processes?

2. Did the t rial c ourt e rr in denying r econsideration of the i n l imine

and t rial e xhibit o rders as to evidence of t estamentary i ntent?

3. Did the t rial c ourt err in denying r econsider a tion of the i n l i mine

and t rial e xhibit o rders regarding severe emotional distress of [Appellant] John Gregury?

4. Did the t rial c ourt err in granting [Appellees’] m otion for

n onsuit as to all counts and all [Appellees] , where the m otions merely sought to relitigate legal issues rejected in the s ummary j udgment?

Substituted brief of Appellants at 3 (unnecessary capitalization omitted).J

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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. F

reilich

, 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 c ircumstances 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 . T hey 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 State wide Investigating G rand J ury , 86J

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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 herei n, 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 th e situation where an

expert report is am ended right before trial or expert testimony exceeds the

scope of the report. In each case, we have recognized t here is unfair surprise

to an adversary

. Appellants contend that, by permitting the late waiver of the

attorney

- client privilege and failing t o 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 w itnesses testify without any record to contain their testimon y.

Shirley and Attorney Yingst a ccuse Appellants of seeking a “rule that

would permanently bind a party” to an initial assertion of attorney

- client

privilege. Shirley assert s 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 t hey cannot claim unfair surprise. Similarly, Attorney Yingst fault s

Appellants for not filing a motion to compel discovery of the communications

as to which the privilege was asserted. Finally, Shirley attribute s Appellants’

predicament to a “ tactical decision” to permanently bind Shirley to her initialJ

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assertion of the privilege, without “actually apply[ing] the fetters.”

Substituted brief of Shirley Greguras at 19.

The r ecord reveals the following. Appellants served interrogatories and

requests for production of documents upon Appellees. They also deposed

Shirley and Attorney Y i ngst. Throughout the discovery process, Attorney

Yingst refused to answer questions calculat ed 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 daught er

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 co mmunications). 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 ne ver

formally challenged its application. As trial commenced on March 16, 2015,

the attorney

- client privilege applied.

In opening statement s , 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 toJ

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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 accoun ts, “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.J

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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 cou ld 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:

You r 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 T he 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 c onduct 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).J

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Id

. at 65. At that point, Appellants’ counsel argued that, at “the very least[,]

tri al 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 mistri al, 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 Y ingst 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 at torney

- client confidences. Counsel for Appell ees 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 w as not discussed or explored during Appellant s’ case

.

Appellees contend first that Shirley was permitted by statute to waive

the privi lege at trial, and that Appellant s 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.J

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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 h er own p urposes. 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 t o 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 mean s 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 countenancingJ

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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 disc overable

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 evid ence 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.J

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Although the propriety of a voluntary last

- minute waiver of the

previously invo ked 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 i n 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

su bject matter waiver where a party us es 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 tacti cal 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 manipulatedJ

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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 be lated 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 r efute 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

, 4 7 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 privi lege in a medical malpractice case in Domako v. Rowe

,

475 N.W.2d 30, 33 (Mich. 1991)

. T he 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 re cognized 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 partyJ

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unprepared.” Id

. The c ourt 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 a ttempt 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 repress ing 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 i n 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 av oid ‘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 adva ntages of not

testifying while enjoying the future possibility of allowing that testimony

frustrates the other party’s attempt to construct an adequate case.” Id . atJ

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499. Hence, that court extended the rule to require the party asserting the

attorney

- cli ent 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 introduct ion 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, t he trial court failed to appreciate the prejudice to Appellants

from Shirley’s last

- minute waiver of the privilege

. If i t had, we believe it could

have alleviated the prejudice without declaring a mistrial. The trial court could

have preclude d Appellees from introducing at trial the communications that

were the subject of the earlier exercise of the privilege, or alternatively, briefly

halt ed 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 effe ctivelyJ

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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 opposi ng 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.Su per. 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 answe rs incorrect. See Pa.R.C.P. 4007.4. Failure to timely supplement

may result in the exclusion of that previously

- un disclosed 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).J

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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 tr eatment.

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 tr ial 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 p rior 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 reca ll

discussions that had occurred fifteen years before. If Appellants had ventured

into the substance of the heretofore forbidden attorney

- client

communications, t he y would have been proceeding blindly without any

knowledge of what the witnesses would say or any ready means to challenge

it.J

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-

In addition, the anticipated revelation of the contents of the

communications blindsided Appellants’ legal expert, Bruce Warsha wsky,

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 A ttorney 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 5 37. Counsel for A ttorney Yingst was permitted to ask

the witness, “So if [Attorney Yingst] testified that he explained the diffe rence

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

- examin ation 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 thatJ

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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, w e reject Appellees’ contention that Appellants should have

file d a motion in limine to obtain a ruling on the privilege, or be precluded

from complaining when Shirley waived it at trial. A m otion 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 pro vide 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, o ften 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 w aived 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, co untenancing 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 thatJ

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his half of joint property would not devolve per the W ill, 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 De cedent and Shirley possessed, how they were

held, or explain that jointly

- held property would pass outside the W ill

.

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

i nformation 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 handwrit ten

documents, purportedly prepared by Decedent, one listing his various

_________________ __________ ______ ____ _______

6 Appellants mai ntain ed 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 Yings t breached his contractual duty to effectuate Decedent’s testamentary intent or because S hirley manipulat ed the joint accounts to frustrate Decedent’s intent

.J

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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

surviv ing 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 D ecedent’s intent as

expressed in the W ill. 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 t hat 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 reversi b le 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 misap plied, 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)

(quo ting 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 P ennsylvani a RuleJ

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of Evidence 901, and provides in pertinen t 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

(q uoting 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) pr ovides 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 (discussingJ

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-

circumstantial evidence and cases cited therein) ; s ee 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. T he trial court makes the preliminary

determination of whether or not a prima facie case exists to warrant its

submi ssion 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 document s

. The writing consisted of a list of accounts and assets ownedJ

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-

by Decedent and Shirley , together with their balances at a point in time that

cou ld 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 docume nts on

the ground that the y 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

_________________ __________ ______ ____ _______

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, i t was possible to ascertain when the documents were written by comparing the balances reported to bank statements.J

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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 c alculated 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 t he accounts would go to the survivor. Hence, the documents were

not offered f or the truth of their contents, as the accuracy of the accounts

list ed and their balances w as 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, rel ied

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

_________________ __________ ______ ____ _______

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 rele vance 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.J

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-

Attorney Yingst’s anticipated testimony that he fully explained jointly

- held

property to Decedent and Shirley. Since s uch 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

r uling 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 unnec essary 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. K ing David

M emorial Park , 527 A.2d 988, 995 (P a. 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, t he trial court properly excluded the

proffered evidence.J

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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,

Jud ge Lazarus and Judge Dubow join

.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/20/2018