J-S31026-16

2016 PA Super 260

* Retired Senior Judge assigned to the Superior Court. 

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: SHOGAN, OTT, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED NOVEMBER 22, 2016

John M. Gregury and Barbara J. Robey (collectively, Appellants), 

appeal from the judgment entered on August 17, 2015, following the trial 

court’s entry of nonsuit in favor of Shirley M. Greguras (Shirley), the Estate 

of Adolf Greguras, James T. Yingst (Yingst), and Guthrie, Nonemaker, Yingst 

& Hart (GNYH) (collectively Appellees). After careful consideration, we 

vacate the judgment, reverse the order granting Appellees’ nonsuit, and 

remain for proceedings consistent with this opinion. 

Appellants are the children of Adolf Greguras (Decedent). Shirley is 

the widow of Decedent1and Appellants’ stepmother. Yingst, who prepared 

Decedent’s March 2, 2000 will, is an attorney with the law firm of GNYH. 

 

1 Shirley was married to Decedent for approximately 35 years. See N.T., 

3/16/2015-3/18/2015, at 395.
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The underlying action stems from a dispute over the distribution of

Decedent’s assets. Specifically, “[Appellants] believe they are entitled to the 

money held jointly by [Shirley and Decedent] and that [Shirley] and/or [] 

Yingst[2]committed some sort of fraud or breach of duty that has prevented 

them from accessing those assets.” Trial Court Opinion Denying Appellants’ 

Motions for Post-trial Relief, 8/10/2015, at 3 (unnumbered). Appellants filed 

a complaint alleging inter alia, fraud, breach of contract, and intentional 

infliction of emotional distress. 

The procedural history was summarized by the trial court in earlier 

opinions concerning motions for summary judgment filed by Appellees:3

The Will provided for [Shirley] to receive[ half] of all 

[] Decedent’s property while the [Appellants] were each 

to receive one fourth] of all his property.2 [However, 

[Appellants] allege that Decedent had written an[d] 

2 At the time of Decedent’s death, he and 

[Shirley] held various financial accounts jointly 

between them and thus title passed to [Shirley] 

by operation of law. Also at [the] time of

Decedent’s death, the marital residence of Decedent 

 

2 Appellants aver they enjoy third-party beneficiary status, which allow them 

to initiate an action against Yingst. See Trial Court Opinion, 2/9/2011, 2 

(addressing preliminary objections filed by Yingst and GNYH) (“Finally, 

[Appellants] allege that they were the express, intended third-party 

beneficiaries of any and all contractual relations between [Yingst and GNYH] 

and [D]ecedent, and therefore, this confers standing to bring such claims.”).

3 The trial court filed separate opinions denying the two separate summary 

judgment motions filed by Shirley and Yingst/GNYH. These opinions contain 

almost identical discussions of the factual and procedural history of this 

case. We quote from the trial court’s opinion addressing Shirley’s summary 

judgment motion. Additional facts set forth in the trial court’s opinion 

addressing Yingst/GNYH’s summary judgment motion are bracketed.
J-S31026-16

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and [Shirley] was owned 1⁄2 by Decedent and 

[Shirley] as tenants by the entireties and 1⁄4 each by

[Appellants] as joint tenants with the right of 

survivorship.

oral communications to his children/[Appellants] and others as 

to his intentions and his understanding of his estate plan, 

including death bed assurances in the presence of [Appellee] 

Shirley and [Appellants. Appellants] allege that they were 

expressly or impliedly the beneficiary of the legal services 

agreement of Decedent and [] Yingst.]

Following Decedent’s death, the real estate became the 

subject of a partition action between [Shirley] and the 

[Appellants], which ultimately culminated in the sale of the home 

and distribution of the proceeds among the parties.[4] 

Decedent’s personal effects and the couple’s household property 

remained in the marital residence as [Shirley] continued to live 

in the home for approximately nine (9) months following 

Decedent’s death. [Appellants] entered the marital residence 

segregating household items in a single room and eventually 

placing them in a locked P.O.D. storage container. Efforts to 

settle disagreements over the various items of personal property 

eventually broke down, and [Appellants] subsequently filed their 

complaint.

[Appellants] initiated this action by praecipe for writ of 

summons on June 26, 2009, and their complaint was filed on 

September 28, 2009 after a praecipe for rule to file a complaint 

was served by GNYH. GNYH filed preliminary objections to the 

complaint and on May 26, 2010, the Honorable John W. 

Thompson, Jr. dismissed the Complaint without prejudice giving 

[Appellants] forty-five (45) days to file an amended complaint. 

On September 1, 2010, [Appellants] filed an amended 

complaint. The Amended Complaint contained various claims 

including: Count I-Equitable Claims - Constructive Trust, Probate 

and Accounting; Count II Fraud; Count III-Breach of Contract; 

 

4 Under the October 25, 1983 deed, Decedent and Shirley transferred the 

real property, for consideration of One Dollar ($1.00), to themselves to hold 

an undivided one-half (1/2) interest as tenants by the entireties, and to 

Appellants Gregury and Robey to each hold an undivided one-fourth (1/4) 

interest as joint tenants with a right of survivorship. Deed, 10/25/1983; 

Appellants’ Exhibit 4.
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Count IV-Professional Negligence; Count V-Intentional Infliction 

of Emotional Distress; and a request for attorney’s fees and 

punitive damages. However, only counts I, II, V, and the request 

for attorney’s fees and punitive damages were alleged against 

[Shirley]. [Counts II, III, IV, V, and the request for attorney’s 

fees and punitive damages were alleged against [Yingst and 

GNYH.]]

Thereafter, GNYH filed preliminary objections to the 

Amended Complaint. On February 9, 2011, the Honorable John 

W. Thompson, Jr.[,] sustained in part and denied in part GNYH’s 

preliminary objections dismissing Count IV-Professional 

Negligence and dismissing attorney’s fees. The rest of the 

amended complaint claims were allowed to proceed. On March 

14, 2014, [Shirley] filed this motion for summary judgment with 

brief in support requesting oral argument. On April 30, 2014, 

[Appellants] filed a response in opposition with brief. On April 

24, 2014, [Shirley] listed this matter for one judge disposition[] 

which was assigned to the Honorable John W. Thompson, Jr. on 

May 1, 2014. 

[Shirley’s] motion for summary judgment will be denied[.] 

Trial Court Opinion, 8/13/2014, at 1–3 (addressing summary judgment 

motion filed by Shirley M. Greguras) (emphasis added, unnecessary 

capitalization omitted); Trial Court Opinion, 8/13/2014, 1–3 (addressing 

summary judgment motion filed by Yingst and GNYH).

The case proceeded to a jury trial on March 16, 2015.5 At the 

conclusion of Appellants’ case, [Appellees] moved for nonsuit which was 

 

5 The claims that proceeded to trial were: Count I-Equitable Claims -

Constructive Trust, Probate and Accounting; Count II-Fraud; Count III 

Breach of Contract; Count V-Intentional Infliction of Emotional Distress; and 

a request for punitive damages.
J-S31026-16

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granted by the trial court. Post-trial motions were denied and this timelyfiled appeal followed.6

The gist of Appellants’ case, based upon the fact that Decedent’s 

property was held in joint accounts that passed to Shirley outside the will, is 

that “Yingst and/or [Shirley], negligently or fraudulently thwarted the 

express intent of [Decedent] as stated in the will by either failing to 

adequately advise [Decedent]; or by [Shirley] manipulating assets after the 

will was drafted.” Appellants’ Brief at 9 (italics in original). Appellants 

assert “their father could not possibly have intended they receive ‘1/4 of 

nothing.’” Id. at 9–10. 

Appellants state the following issues for this Court’s consideration, 

which we have re-ordered for ease of disposition:

1. Did the trial court err in denying reconsideration of the in limine

and trial exhibit orders as evidence of testamentary intent[?]

2. Did the trial court err in denying reconsideration of the in limine

and trial exhibit orders regarding severe emotional distress of [] 

Gregury?

3. Did the trial court err in allowing [Shirley] to waive attorney[-

]client privilege at trial after asserting it throughout discovery 

and pre-trial processes?

4. Did the trial court err in granting [Appellees’] motion for nonsuit 

as to all counts and all defendants, where the motions merely 

sought to relitigate legal issues rejected in summary judgment? 

 

6 Appellants timely complied with the trial court’s order to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal.
J-S31026-16

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Appellant’s Brief at 3 (suggested answers and unnecessary capitalization 

omitted). 

We first examine Appellants’ argument that the trial judge, the 

Honorable David Grine, erred in refusing to admit oral and written evidence 

of Decedent’s testamentary intent and testimony and medical records of 

Gregury, both of which had been precluded by a pre-trial order granting the 

Appellees’ motions in limine. See Appellants’ Brief at 22, 32.

When reviewing rulings on motion in limine, we apply the scope 

of review appropriate to the particular evidentiary matter. A 

motion in limine is a procedure for obtaining a ruling on the 

admissibility of evidence prior to or during trial, but before the 

evidence has been offered. In reviewing a challenge to the 

admissibility of evidence, we will only reverse a ruling by the 

trial court upon a showing that it abused its discretion or 

committed an error of law. 

Rachlin v. Edmison, 813 A.2d 862, 869 (Pa. Super. 2002) (citations 

omitted).

Prior to trial, based upon Appellants’ Exhibit Chart provided to counsel 

at the pre-trial conference, Shirley and Yingst/GNYH each filed a motion in 

limine to preclude certain handwritten documents7and oral testimony that 

Appellees anticipated Appellants would seek to introduce at trial to show 

 

7 Appellants describe the handwritten documents as “documents which 

identified [the] Decedent’s assets and one on which there was a handwritten 

calculation of what half of those assets would be.” Appellants’ Brief at 10. 

See also Appellants’ Appendix to Appellants’ Response in Opposition to 

Motions for Summary Judgment, Nos. 28-30.
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Decedent’s testamentary intent. Appellees also sought to preclude medical 

testimony and medical records of Gregury. 

The Honorable Stephen P. Linebaugh granted the Appellees’ motions in 

limine, stating:

[Appellants] are precluded from presenting any unauthenticated 

handwritten documents including but not limited to those 

handwritten documents listed in [Appellants’] Exhibit Chart at P8 

and P9 and in [Appellants’] appendix to their Motion for 

Summary Judgment at S28-S30. Such documents are hearsay 

and irrelevant to this matter.

[Appellants] are precluded from presenting an[y] oral testimony 

related to testamentary intent of [] Decedent. Such testimony 

violates the parole [sic] evidence rule.

[Appellants] are precluded from presenting any medical 

testimony including but not limited to medical testimony 

concerning emotional distress because [Appellants] have no 

expert.

Order Granting Motions in Limine, 3/6/2015.

Judge Linebaugh reiterated these rulings in a separate order granting

Appellees’ objections to trial exhibits: 

[Appellants] are precluded from presenting the handwritten 

documents identified as P8-P9 as trial exhibits. We have already 

precluded the presentation of these documents in our Order 

granting the Omnibus Motions in Limine.

...

[Appellants] are precluded from presenting as trial exhibits any 

medical records, prescriptions, mental health evaluations, 

progress notes, and psychiatric evaluations, identified as P28-

P50, because Appellants have no expert witness.

Order Granting Objections to [Appellants’] Trial Exhibits, 3/6/2015.
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While the coordinate jurisdiction rule applied to Judge Linebaugh’s 

pretrial orders,8 Appellants’ counsel, at trial, made a supplemental proffer of 

authentication evidence for the handwritten documents. See N.T., 

3/16/2015-3/18/2015, at 406-407. The trial court rejected the proffer.

In denying post-trial motions, Judge Grine opined that the motions in

limine were properly granted:

Prior to trial, President Judge Stephen P. Linebaugh ruled on 

several motions in limine. [The trial court] adhered to those 

rulings as they were not in error. First, [Appellants] were 

properly precluded from presenting unauthenticated handwritten 

documents as those documents constituted hearsay and were 

irrelevant to this matter. Second, [Appellants] were properly 

precluded from presenting oral testimony related to the 

testamentary intent of [] Decedent. Such testimony would 

violate the parole [sic] evidence rule. Third, [Appellants] were 

properly precluded from presenting medical testimony 

concerning emotional distress because [Appellants] had no 

expert to provide such testimony.

Trial Court Opinion, 8/10/2015, at 3 (unnumbered). We address the 

preclusion of oral testimony, handwritten documents, and medical records, 

sequentially.

In this case, Decedent’s will provided:

 

8

“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 Hospital, 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. “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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SECOND: I give all of my property, real, personal and mixed, of 

whatsoever kind and wheresoever 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. Gregury, 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 Adolf Greguras, 3/2/2000, at 1.

Regarding the precluded oral testimony of Decedent’s testamentary 

intent, Appellants argue the evidence was admissible pursuant to the parol 

evidence rule as set forth in Herr Estate, 161 A.2d 32 (Pa. 1960):

A Court interpreting a will or a contract can always consider the 

surrounding circumstances in order to ascertain the intention 

and the meaning of the parties. Moreover, where an ambiguity 

exists, parol evidence is admissible to explain or clarify or 

resolve the ambiguity, irrespective of whether the ambiguity is 

created by the language of the instrument or by extrinsic or 

collateral circumstances.

Id. at 34 (citations omitted). See Appellants’ Brief at 23. Relying on the 

above quoted legal principles, Appellants contend that,

[w]hile the will is clear and supports the position of the

[Appellants], ambiguity was created by the fact that 

notwithstanding the clear terms of the will, [Appellees] claimed 

all valuable property was held by entireties at the time of death 
J-S31026-16

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and by operation of law the assets admitted to have been 

intended to pass through the will did not pass through it.

Appellants’ Brief, at 23–24. 

“An ambiguity in a will must be found without reliance on extrinsic 

evidence; extrinsic evidence is admissible only to resolve, not create, an 

ambiguity.” In re Estate of Harper, 975 A.2d 1155, 1162 (Pa. Super. 

2009) (citation omitted). “There are two types of ambiguity: patent and 

latent.” In re Estate of Schultheis, 747 A.2d 918, 923 (Pa. Super. 2000) 

(citation omitted). Appellants’ argument suggests a latent ambiguity, which 

this Court has described as follows:

A latent ambiguity arises from collateral facts which make the 

meaning of a written document uncertain, although the language 

appears clear on the face of the document. To determine 

whether there is an ambiguity, it is proper for a court to hear 

evidence from both parties and then decide whether there are 

objective indications that the terms of the document are subject 

to differing meanings.

Where a latent ambiguity exists we have repeatedly held that 

parol evidence is admissible to explain or clarify the ambiguity, 

irrespective of whether the latent ambiguity is created by the 

language of the will or by extrinsic or collateral circumstances. 

Where a latent ambiguity exists, the court may resort to parol 

evidence (such as testimony of the scrivener) to determine [] 

decedent’s true intent. One limitation to the foregoing is

that extrinsic evidence of surrounding facts must only

relate to the meaning of ambiguous words of the will. It

cannot be received as evidence of the testator’s intention

independent of the written words employed.

Id. (citations, quotations and brackets omitted) (emphasis added).

Here, Appellants concede that Decedent’s will “is clear.” Appellants’ 

Brief at 23. In fact, Decedent’s will specified that Appellants would each 
J-S31026-16

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receive a quarter share of his property. However, Appellants believe an 

ambiguity exists because Decedent’s assets did not pass through the will. 

We disagree.

Decedent’s joint accounts with Shirley had a statutory presumption of 

a right of survivorship under the Multi-Party Account Act (MPAA),9and there 

is no statutory provision giving a will primacy over the right of survivorship 

presumed by the MPAA. In re Novosielski, 992 A.2d. 89, 101 (Pa. 2010). 

The Novosielski Court stated: “One who knowledgeably creates a joint 

account with another arguably does so with the present intent to employ the 

account’s survivorship characteristic in substitution for a testamentary 

device.” Id. at 102 (citation omitted).

Here, Appellants do not challenge Shirley’s entitlement under the 

MPAA.10 Rather, Appellants assert that Decedent did not intend for his 

assets to pass outside of the will, and that the oral and handwritten 

documents would show that Decedent’s intent was for all accounts to pass

under the will and that his intent was frustrated by Appellees. However, 

Appellants cannot rely on extrinsic evidence to create an ambiguity in the 

Will. Harper, supra; Schultheis, supra. Here, the terms of the will were 

clear and unambiguous and, therefore, we agree with the trial court that oral 

 

9 20 Pa.C.S. §§ 6301-6306.

10 The presumption of the right of survivorship can be rebutted by clear and 

convincing evidence of a different intent. In re Novosielski, 992 A.2d at 

106–107.
J-S31026-16

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testimony about Decedent’s testamentary intent was not admissible under 

the parol evidence rule.

Moreover, regarding the proffered handwritten notes, we find no error 

in Judge Linebaugh’s determination, which was adhered to by the trial court, 

that these notes were inadmissible. 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). While the hearsay rule is subject to exceptions, 

none appears applicable here. The documents at issue were unsigned, 

undated, and without a clear purpose. Nevertheless, Appellants were 

offering these handwritten documents as proof of Decedent’s testamentary 

intent, that is, the truth of the matter asserted. As such, they clearly 

constituted hearsay.

There were other problems with the documents. Although Appellants 

proffered additional testimony to identify the handwriting and stationery as 

Decedent’s for authentication purposes, without evidence to show when or 

why the documents were written, the relevancy of the documents is 

impossible to determine. See Pa.R.E. 401 (“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.”); Pa.R.E. 402 (“All relevant evidence is admissible, except as 

otherwise provided by law. Evidence that is not relevant is not admissible.”).
J-S31026-16

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Accordingly, based on our review, we conclude preclusion of oral 

testimony and the handwritten documents of Decedent’s testamentary intent 

was proper, and Appellants’ first argument presents no basis upon which to 

grant relief.

Nor do we find merit to Appellants’ contention that the trial court erred 

in precluding medical evidence of Gregury’s emotional distress for lack of an 

expert opinion. As mentioned above, Judge Linebaugh granted the 

Appellees’ motions in limine, and Judge Grine agreed that “[Appellants] were 

properly precluded from presenting medical testimony concerning emotional 

distress because [Appellants] had no expert to provide such testimony.” Trial 

Court Opinion, 8/10/2015, at 3 (unnumbered). 

The Pennsylvania Supreme Court has explained, “Given the advanced 

state of medical science, it is unwise and unnecessary 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. King David Memorial Park, 527 A.2d 

988, 995 (Pa. 1987) (emphasis added). Furthermore, this Court has held the 

requirement of expert testimony relates, “both as to the fact of the distress 

itself and as to the causation element.” Wecht v. PG Publ. Co, 725 A.2d 

788, 791 (Pa. Super. 1999) (emphasis added). While Appellants insist 

Gregury’s medical records are sufficient “medical evidence” that “showed [] 

Gregury suffered extreme emotional distress related to the conduct at 
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issue,” we reject that argument in light of the above-cited authority. 

Consequently, Plaintiffs’ second claim fails to warrant relief.11

Next, we address Appellants issue that the trial court erred in allowing 

Shirley to waive her attorney-client privilege at trial after asserting it 

throughout discovery and pre-trial processes. Specifically, Appellants argue 

that the effect of Shirley’ waiver of her attorney-client privilege was 

“fundamental unfairness” and “undue surprise.” Appellants’ Brief at 29, 30. 

Appellants contend allowing Shirley to waive privilege left them 

with a “lady or the tiger” dilemma: opening the door and asking 

questions for which the answer was not know[n;] or having all 

witnesses including the expert commit to opinions on what 

happened (was it Yingst or [Shirley]), with [Appellees] free to 

concoct any claim of previously undisclosed privileged 

discussions, free of any risk of rebuttal given [Yingst’s] 

convenient and suspicious failure to preserve the written notes 

 

11 Furthermore, based on the facts as presented, Appellants were in no way 

able to sustain a claim for intentional infliction of emotional distress. 

Irrespective of whether Appellants proffered an expert, Appellants have 

failed to set forth a cognizable claim for which relief could be sought. See 

Swisher v. Pitz, 868 A.2d 1228, 1230–31 (Pa. Super. 2005) (citations and 

quotations removed) (“Outrageous or extreme conduct [which must be 

proven to prevail on an intentional infliction of emotional distress claim] has 

been defined by the appellate courts of this Commonwealth as conduct that 

is so outrageous in character, so extreme in degree, as to go beyond all 

possible bounds of decency, and to be regarded as atrocious, and utterly 

intolerable in civilized society. [I]t has not been enough that the defendant 

has acted with intent which is tortious or even criminal, or that he has 

intended to inflict emotional distress, or even that his conduct has been 

characterized by ‘malice,’ or a degree of aggravation that would entitle the 

plaintiff to punitive damages for another tort.”). See also Hoy v. 

Angelone, 720 A.2d 745, 754 (Pa. Super. 1998) (“Cases which have found 

a sufficient basis for a cause of action of intentional infliction of emotional 

distress have had presented only the most egregious conduct.”). 
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which Yingst and [Shirley] admit were taken in their meeting 

with [Decedent].

Appellant’s Brief at 31. At trial, after Appellees’ counsel’s opening statement 

had been presented, Appellants’ counsel requested a mistrial or additional 

discovery based on the Appellees’ counsel’s indication that Shirley was 

waiving her attorney client privilege at trial.12 The court, after hearing 

argument outside the presence of the jury, ruled: “Motion for mistrial denied 

and the [trial c]ourt is satisfied that the previous instructions regarding 

statements of counsel not being evidence cover the problem.” N.T., 

3/16/2015-3/18/2015, at 66–67.

In its opinion denying Appellants’ post-trial motions, the trial court 

further explained:

[Appellants] had requested a mistrial or time to conduct 

additional discovery because [Shirley] waived her attorney-client 

privilege. [Appellants] would argue that since she only waived 

the privilege before trial that they were so prejudiced as to 

warrant a mistrial or, alternatively, to require additional 

discovery. This case was commenced in 2009, and the [p]arties 

conducted discovery for six years, and that discovery was 

exhaustive. The privilege was [Shirley’s] to invoke or waive at 

trial. She chose to waive her privilege. This was not improper 

and the [trial c]ourt correctly denied the request for mistrial or, 

in the alternative, additional discovery.

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

“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 

 

12 See N.T., 3/16/2015–3/18/2015, at 62–64.
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an abuse of discretion.” Bugosh v. Allen Refractories Co., 932 A.2d 901, 

914-15 (Pa. Super. 2007) (citation omitted). “As abuse of discretion is the 

standard of review in this matter, [it is this Court’s] function to determine 

whether the trial court’s decision to exclude [] testimony [] constituted 

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). Such decisions “are within the sound discretion of 

the trial court. We may reverse only if we find an abuse of discretion or error 

of law.” Cimino v. Valley Family Med., 912 A.2d 851, 853 (Pa. Super. 

2006) (citations omitted). 

This Court is cognizant of the dearth of case law in this Commonwealth 

regarding this particular matter and therefore, it appears to be an issue of 

first impression. In disagreeing with the trial court and therefore finding 

Shirley’s late waiver of her attorney-client privilege to be both prejudicial 

and fundamentally unfair, we are guided by the decisions of our sister states 

which have encountered this very issue. 

In Seattle Nw. Sec. Corp. v. SDG Holding Co., 812 P.2d 488 

(Wash. App. 1991) the court held 

that when a party is asserting the attorney-client privilege, that 

party must make an election prior to any deadline for completion 

of discovery as to whether or not the privilege will be voluntarily 

waived at trial and, if the privilege is to be waived, provide to 

opposing counsel a statement of the subject matter of the 

testimony. If [a party] wishes to preserve the privilege during 

discovery, it cannot have it both ways.
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Id. at 499. See also Int'l Tel. & Tel. Corp. v. United Tel. Co. of Florida, 

60 F.R.D. 177, 186 (M.D. Fla. 1973) (“Fundamental fairness and justice 

requires [sic] that if the defendant intends to waive the privilege at trial by 

the introduction of evidence within that privilege, then the defendant will be 

required to allow discovery with regard to matters material to that 

testimony.”); Domako v. Rowe, 475 N.W.2d 30, 33 (Mich. 1991) ( “[I]t is 

patently unfair for a party to assert a privilege during pretrial proceedings, 

frustrate rightful discovery by the other party, and then voluntarily waive

that privilege at trial, thereby catching the opposing party unprepared, 

surprised, and at an extreme disadvantage. Thus the rule requires that a 

party choose between the existing privilege and the desired testimony. The 

party may not have both.”). 

In line with the holdings of our sister states, we find a party may not 

waive privilege at trial which was previously asserted during the discovery 

and pre-trial process. In concluding as such, we agree with Appellants that 

Shirley’s late waiver of privilege essentially amounts to a trial by ambush, 

disallowing potentially relevant discovery and allowing undisclosed 

information to be presented at trial in direct contradiction to our long held 

standard that privilege may not be used as both a sword and a shield.13

 

13 Additionally, we wholly disagree with Shirley’s argument that Appellants 

should have sought “a motion in limine prior to trial to preclude introduction 

of any previously privileged information.” Shirley’s Brief at 18. We find it 

counter to both our well-established rules and judicial economy that parties 

be forced to file motions to preclude testimony and information that has 
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Denying Appellants’ request for a mistrial or additional discovery created a 

situation that made it impossible for Appellants to cross-examine Appellees. 

As aptly stated by Appellants’, Shirley late waiver “had a particularly 

deleterious effect on the ability of [Appellants] to present expert evidence, 

as the switch allowed essentially blind cross-examination on ‘hypotheticals’ 

which could be converted into non-hypothetical testimony in [Appellees] 

case.” Appellants’ Brief at 7. 

Consequently, we conclude the trial court’s allowance of Shirley’s 

waiver at trial was an abuse of discretion. Furthermore, we find that under 

these circumstances, this allowance cannot be merely harmless error. See 

Rettger v. UPMC Shadyside, 991 A.2d 915, 923–24 (Pa. Super. 2010) 

(quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 

2000) (“Consideration of all new trial claims is grounded firmly in the 

harmless error doctrine ‘[which] underlies every decision to grant or deny a 

new trial. A new trial is not warranted merely because some irregularity 

occurred during the trial or another trial judge would have ruled differently; 

the moving party must demonstrate to the trial court that he or she has 

suffered prejudice from the mistake.’”). 

In conclusion, we agree that the trial court properly disallowed 

evidence of the oral testimony, handwritten documents and evidence about 

Gregury’s purported severe emotional distress. Further, we find the trial 

 

previously been asserted as privileged or non-discoverable on the chance a 

party decides to renege at trial and introduce such information. 
J-S31026-16

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court committed reversible error by allowing Shirley to waive privilege after 

previously asserting the same during discovery. For this reason, we vacate 

the judgment, reverse the trial court’s entry of non-suit, and remand for the 

allowance of additional discovery and a new trial.14

Judgment vacated. Order reversed. Case remanded for further 

proceedings consistent with this opinion. Jurisdiction relinquished. 

Judge Shogan joins.

Judge Ott files a dissenting opinion.

 

14 Because we remand Appellants’ case for a new trial, their remaining issue, 

regarding the trial court’s granting of Appellees’ motion for nonsuit is moot. 

Nonetheless, we note that the denial of a motion for summary judgment 

does not preclude a trial court from subsequently granting a motion for 

nonsuit.

In [Parker v. Freilich, 803 A.2d 738, 745 (Pa.Super.2002)],

this Court held that a trial court is permitted to consider an 

issue in a motion for compulsory nonsuit that had been 

previously addressed in denying a motion for summary 

judgment. We explained that a motion for summary judgment 

and a motion for a compulsory nonsuit “are not motions of the 

same kind[.]” This is because the plaintiff's “presentation of her 

case in chief constitutes an intervening change in the facts that 

warranted a second consideration of the issue[.]” Therefore, as 

Appellant's argument is foreclosed by Parker, we conclude the 

trial court did not violate the law of the case doctrine in 

considering and granting Appellee’s motion for a compulsory 

nonsuit. 

Neidert v. Charlie, 143 A.3d 384, 391 (Pa. Super. 2016)(emphasis added, 

citations omitted).
J-S31026-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016