J-E02003-17

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.

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. 
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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 [attorneyclient] 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.

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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-

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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 

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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 

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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 

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10 Trial Court Opinion, 8/10/2015, at 5 (unnumbered).

11 Because 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 

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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 1⁄4 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 

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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) 

(citation omitted).

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 1⁄2, 1⁄4, and 1⁄4 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. 

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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