J-A01018-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

CUSTOM HOMES, INC., A 

PENNSYLVANIA CORPORATION,

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

Appellee :

:

v. :

:

JANE YOUNG, AN INDIVIDUAL, AND 

KIKI DOUMAS, AN INDIVIDUAL,

:

:

:

Appellants : No. 529 WDA 2014

Appeal from the Order March 20, 2014,

Court of Common Pleas, Washington County,

Civil Division at No. 2012-2460

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 24, 2015

Jane Young and Kiki Doumas (“Young” and “Doumas” respectively; 

“Appellants” collectively) appeal from an order of court denying their 

objections to a proposed subpoena issued by Custom Homes, Inc. (“Custom 

Homes”) on Appellants’ counsel. Following our review, we reverse. 

In 2008, Young and her then-husband, Bruce Goldblatt, entered into a 

contract with Custom Homes for the construction of a new home in 

Washington County. Young’s parents, Menelaos and Kiki Doumas, gave her 

money to purchase the plot of land upon which the house was to be 

constructed and for the construction of the house.1 During the construction 

of the house, a dispute arose, which ended up in AAA arbitration in 

 

1 Menelaos Doumas passed away in 2011 and is not named as a party in this 

matter. 
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Allegheny County. The arbitration resulted in an award for Custom Homes in 

the amount of $64,032. On November 30, 2010, Custom Homes had the 

award reduced to a judgment and on May 5, 2011, the judgment was 

entered in Washington County. When Custom Homes attempted to execute 

on this judgment, it discovered that Young’s real property (two homes, 

including the one that was the subject of the arbitration) and her automobile 

were encumbered by various liens in favor of Dumas. 

Following this revelation, Custom Homes filed a complaint in 

Washington County against Appellants alleging a violation of the 

Pennsylvania Uniform Fraudulent Transfer Act, premised on the theory that 

the encumbrances on Young’s property were made with the intent to hinder 

or defraud Custom Homes in its attempts to execute on its judgment against 

Young. Once the pleadings were closed, Custom Homes issued notice of its 

intent to subpoena all documents in the possession of Appellants’ counsel’s 

law firm, Jones, Gregg, Creehan & Gerace, LLP, regarding its representation 

of not only appellants but also Menelaos Dumas, from January 1, 2008 

through July 1, 2011. Appellants filed objections to this subpoena, 

asserting, inter alia, that the documents sought were protected by the 

attorney-client privilege and/or work product doctrine. The trial court 
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ultimately denied Appellants’ objections on March 20, 2014. This timely 

appeal followed.2

Appellants present the following four issues for our review: 

1. Did the trial court commit an error of law when it 

permitted the automatic disclosure of attorneyclient privileged information under the crimefraud exception based on Custom Home’s mere 

allegation of fraud in its complaint?

2. Did the trial court commit an error of law in 

permitting disclosure of attorney-client 

information under the crime-fraud exception 

without any evidence presented at a hearing to 

indicate any fraudulent conduct on the part of 

counsel or the Appellants? 

3. Did the trial court commit an error of law in 

compelling the disclosure of attorney work 

product in response to the subpoena issued to 

Appellants’ counsel? 

Appellants’ Brief at 4.3 

Appellants first argue that Custom Homes’ mere allegation of fraud 

was insufficient to overcome their assertion of attorney-client privilege. 

“Whether the attorney-client privilege or the work product doctrine protects 

a communication from disclosure is a question of law. This Court's standard 

 

2

 The order at issue is appealable as a collateral order pursuant to Pa.R.A.P. 

313. See Saint Luke's Hosp. of Bethlehem v. Vivian, 99 A.3d 534, 540 

(Pa. Super. 2014). 

3 Appellants included an additional issue in their statement of questions 

involved, see Appellants’ Brief at 4, but it was not included in their Pa.R.A.P. 

1925(b) statement of matters complained of on appeal. As such, it is 

waived and cannot be raised on appeal. Pa.R.A.P. 1925(b)(4)(vii). 
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of review over questions of law is de novo, and the scope of review is 

plenary.” Saint Luke's Hosp. of Bethlehem, 99 A.3d at 540 (Pa. Super. 

2014). 

Preliminarily, we note that the attorney-client privilege protects both 

communications from the client to the attorney and from the attorney to the 

client. Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011). 

The attorney-client privilege is intended to foster 

candid communications between counsel and client, 

so that counsel may provide legal advice based upon 

the most complete information from the client. The 

central principle is that a client may be reluctant to 

disclose to his lawyer all facts necessary to obtain 

informed legal advice, if the communication may 

later be exposed to public scrutiny. Recognizing that 

its purpose is to create an atmosphere that will 

encourage confidence and dialogue between attorney 

and client, the privilege is founded upon a policy 

extrinsic to the protection of the fact-finding process. 

The intended beneficiary of this policy is not the 

individual client so much as the systematic 

administration of justice which depends on frank and 

open client-attorney communication.

In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 

216-17 (Pa. 2014) (internal citations omitted). “Protection under attorneyclient privilege is subject to limits, exceptions, and waiver. For example, the 

crime-fraud exception results in loss of the privilege's protections when the 

advice of counsel is sought in furtherance of the commission of criminal or 

fraudulent activity.” Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 

1259, 1265 (Pa. Super. 2007). Furthermore, “[t]he party who has asserted
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attorney-client privilege must initially set forth facts showing that the 

privilege has been properly invoked; then the burden shifts to the party 

seeking disclosure to set forth facts showing that disclosure will not violate 

the attorney-client privilege, e.g., because the privilege has been waived or 

because some exception applies.” Id. at 1266. In this appeal, our inquiry 

focuses only on the second half of this standard: whether Custom Homes 

sufficiently established the crime-fraud exception to the attorney-client 

privilege. 

To establish that an exception to the privilege applies, the party 

seeking disclosure “must establish[] a prima facie case that the party 

asserting the privilege is committing a crime or fraud or continuing the same 

in exercising the privilege[.]” Brennan v. Brennan, 422 A.2d 510, 517 

(Pa. Super. 1980). Mere allegations of crime or fraud will not suffice; 

“before the fact may be shown, the court must be satisfied that the 

evidence proposed to establish the fact is sufficient to go to the jury for the 

purpose. To drive the privilege away, there must be something to give 

colour to the charge; there must be prima facie evidence that it has 

some foundation in fact.” Nadler v. Warner Co., 184 A. 3 (Pa. 1936) 

(internal citation omitted) (emphasis added). 

For instance, Brennan involved a custody suit in which the father 

moved to Florida and took the parties’ children with him. Counsel for the 

father appeared alone at a conciliation and refused to disclose his client’s 
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home address and phone number. Counsel refused because the father 

specifically requested that he not reveal this information and asserted the 

attorney-client privilege as the basis for his refusal. The trial court held 

counsel in contempt and imposed a fine for every day that counsel continued 

to withhold the information. On appeal, after first determining that a client’s 

home address and telephone number could be protected by the attorneyclient privilege, this Court turned its attention to whether the mother had 

sufficiently established a prima facie case that a crime or fraud was being 

committed. We concluded that she had not, noting that the trial court did 

not receive any evidence on this issue and made no finding that any criminal 

or fraudulent conduct had occurred. Brennan, 422 A.2d at 517. 

Similarly, in this case, Custom Homes presented no evidence to the 

trial court to support its claim.4 Instead, it relied on the allegations 

contained in its complaint to serve as the “evidence” needed to meet its 

burden of proof. Custom Homes’ Brief at 5-6, 9-13.5 This cannot suffice. 

 

4

 For instance, Custom Homes could have deposed Young, Bruce Goldblatt, 

or, if she were deemed competent, Dumas, in order to develop the evidence 

required to meet its burden. 

5 Custom Homes relies on these allegations in two ways: first, by arguing 

that Appellants have admitted the allegations either directly or by failure to 

deny with adequate specificity; and second, by arguing that because it 

survived Appellants’ demurrer, it has per se established a prima facie case of 

fraud. From our review of the record, we disagree that Appellants admitted 

conduct alleged by Custom Homes that would establish fraud, directly or 

otherwise. Moreover, we note that the trial court did not reach the merits of 

Appellants’ demurrer; rather, it concluded that the demurrer was 
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The standard as set forth above is clear: the party seeking disclosure must 

present evidence to establish that his allegation has a basis in fact. Nadler, 

184 A. at 3; see also In re Investigating Grand Jury of Philadelphia 

Cnty. No. 88-00-3503, 593 A.2d 402, 407 (Pa. 1991); Fleming, 924 A.2d 

at 1266; Brennan, 422 A.2d at 517. Custom Homes has not put forth any 

evidence in support of its position, and so it failed to meet its burden of 

proof to vitiate the attorney-client privilege.6

Because Custom Homes has failed to meet its burden, the order 

denying Appellants’ objections to Custom Homes’ subpoena is vacated. 

Having reached this conclusion, Appellants’ remaining issues are moot and 

we need not address them. 

Order vacated. Case remanded. Jurisdiction relinquished. 

 

insufficiently pled and provided Appellants leave to plead over. Trial Court 

Opinion, 10/18/12. Rather than doing so, Appellants filed an answer to the 

complaint. Contrary to Custom Homes’ position, there has been no 

determination that it has set forth a prima facie case in support of its claim.

6 We note that the trial court did not consider whether Custom Homes 

satisfied its burden of proof as set forth in the myriad cases cited above. 

Rather, the trial court reasoned, “As [Appellants] failed to posit any 

counterargument to [Custom Homes’ assertion of] the crime/fraud 

exception, this [c]ourt agreed that Custom Homes has satisfied its burden.” 

Trial Court Opinion, 6/3/14, at 2. Thus, the trial court palpably misapplied 

the law in reaching it decision. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/24/2015