J-S31026-16

2016 PA Super 260

JOHN M. GREGURY AND BARBARA J. 

ROBEY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

SHIRLEY M. GREGURAS AND ESTATE OF 

ADOLF GREGURAS, AND JAMES T. 

YINGST AND GUTHRIE, NONEMAKER, 

YINGST & HART

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, J., OTT, J., and STRASSBURGER, J.*

DISSENTING OPINION BY OTT, J.: FILED NOVEMBER 22, 2016

Because I believe there was no reversible error and the nonsuit was 

properly granted, I very respectfully dissent.

This action was brought by John M. Gregury and Barbara J. Robey 

(collectively Appellants) against Shirley M. Greguras (Shirley), the Estate of 

Adolph Greguras, James T. Yingst (Yingst), and Guthrie, Nonemaker, Yingst, 

and Hart (GNYH) (collectively Appellees). Shirley is Appellants’ stepmother 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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and was 89 years of age in 2014.1 Yingst prepared wills for Shirley and her 

husband, Adolph Greguras (“the Decedent”) in 2000. The Decedent died in 

2007. At the heart of the dispute in this case are two joint accounts, which 

were owned by Shirley and Decedent and opened in 2004, that passed 

outside the Decedent’s will.

The trial court, in its opinion in support of the order denying post-trial 

motions, distilled the facts giving rise to the underlying action, as follows:

A husband [the Decedent] and wife [Shirley] go to husband’s 

attorney [Yingst] and husband asks attorney to draft wills for 

himself and his wife. His will states that his estate will go to his 

wife with a residuary clause for his children. [The Decedent’s 

will is executed on March 2, 2000.] Upon his death [in 2007] the 

majority of his wealth and assets are held in joint accounts with 

his wife. Some remaining personal property of his may be 

distributed to [Appellants] as part of the estate, but they have 

no claim to the money held in the accounts. In fact, [Appellants] 

entered the residence of Shirley [] and portioned out the 

personal property to which they felt they were entitled and 

sequestered it away from [Shirley]. [Appellants] believe they are 

entitled to the money held jointly by [Shirley] and their 

deceased father and that [Shirley] and/or Attorney Yingst 

committed some sort of fraud or breach of duty that has 

prevented them from accessing those assets. ....

Trial Court Opinion Denying Plaintiffs’ Motions for Post-trial Relief, 

8/10/2015, at 2–3 (unnumbered).

I begin with the third issue, whether the trial court erred in denying 

Appellants’ motion for mistrial and/or curative instruction when Shirley 

____________________________________________

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

motion filed by Shirley).
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waived her attorney-client privilege at trial after asserting it throughout 

discovery and pre-trial processes. The Majority found merit in this 

argument, and concluded that a new trial was warranted in this case. For 

the reasons set forth below, I disagree.

As already stated by the Majority, we review the trial court’s grant or 

refusal of a mistrial for an abuse of discretion. Bugosh v. Allen 

Refractories Co., 932 A.2d 901, 914-915 (Pa. Super. 2007). Furthermore, 

relevant to this issue, the attorney-client privilege is codified at Section 5928 

of the Judicial Code, 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 to disclose same, unless in 

either case this privilege is waived upon trial by the client.

42 Pa.C.S. § 5928. 

By way of background to this issue, it is important to note that the 

issue of attorney-client privilege arose during discovery in two contexts. 

First, Yingst asserted the attorney-client privilege regarding any 

communications with Shirley and the Decedent.2 Second, Yingst did not 

assert the attorney-client privilege regarding communications with Shirley 

____________________________________________

2 See N.T., 3/16/2015–3/18/2015, at 84, 121–122; Appellants’ Trial Brief, 

3/10/2015, at 8; Appellants’ Brief in Opposition to the Motions for Summary 

Judgment, 5/1/2014, at 8.
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when her daughter was also present.3 With regard to these latter 

communications, which occurred after the Decedent’s death, Appellants’ 

counsel argued to the court prior to trial that there was “irregular assertions 

of the attorney-client privilege where Yingst “selectively declined to disclose 

content when he ‘was not certain whether [Shirley’s] daughter had been 

present’” and, therefore, that “negative inferences are warranted from the 

selective attorney-client communications disclosures.”4

At trial, in his opening statement, Appellants’ counsel discussed the 

attorney-client privilege, as follows:

[Yingst] claims to have taken notes during the first meeting, and 

[Shirley] testified that she remembered him taking notes.

They produced what he said was his entire file without any 

assertion of attorney/client privileges to any document. No such 

notes appear in the file. He had no informational materials that 

he gave to his client.

****

... Defendant Yingst claimed that he had gave 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. 

____________________________________________

3 See N.T., 3/16/2015–3/18/2015, at 85.

 

4 Appellants’ Trial Brief, 3/10/2015, at 12 (italics omitted), 14; Appellants’ 

Brief in Opposition to the Motions for Summary Judgment, 5/1/2014, at 12 

(italics omitted), 14.
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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 [the 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., 3/16/2015-3/18/2015, at 36–37. Thereafter, counsel for Yingst/GNYH, 

in his opening, indicated that Shirley would waive her previously asserted 

attorney-client privilege:

... 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 to their 

children, plain and simple.

You’re going to hear Mr. Yingst testify that he had the meeting 

with [the 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 you are both 

owners on, they don’t come inside the will. 

Id. at 51–52. 

Following the conclusion of Yingst/GYNH’s counsel’s opening, and after 

the jury had been excused for lunch, appellants’ counsel asked for a mistrial, 

curative instruction, and additional discovery, arguing: 

I hate to do this, Your Honor, but I have two things: One, I 

believe that the content of the opening argument of the defense 

counsel ... constitutes grounds for a mistrial. I mean it went that 

far.
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And it also raises, if not that, it raises an issue which I had 

included in the pretrial brief regarding the inconsistent assertion 

of attorney/client privilege and the insertion at trial of 

information alleged to have been communicated in an 

attorney/client communication to which the Defendant Yingst did 

not testify in his deposition and regarding which he refused to 

testify at his deposition and regarding which he’s now through 

counsel told the jury information that is absolutely inconsistent 

with the assertion of attorney/client privilege he previously 

made. 

And the specific thing that I do recall, and if necessary I would 

have to go through the notes, but the specific thing was that he 

had explained the types of property and that [the Decedent] 

knew the different types of property that he had and didn’t have.

And not only is that inconsistent – I would respectfully submit, 

Your Honor, that if you were to give a curative instruction 

indicating that any statements made in opening argument 

regarding what Mr. Yingst did or did not say to his client in 

particular, they should recall the prior instruction you gave about 

not argument, but I would ask that the Court give an instruction 

to counsel at this time that if their witness asserted 

attorney/client privilege during a deposition, that witness is not 

permitted at trial to inject matters that they declined to testify to 

during their deposition. 

It can’t -- And they raised it inconsistently. I pointed it out in the 

summary judgment brief, I pointed it out in the trial brief, and I 

believe those inconsistencies allow me to make credibility claims 

to the jury, but I don’t think they can cure their defect at trial by 

suddenly sandbagging me with additional disclosures that he 

refused to make at the time of his deposition. Thank you.

Id. at 62–64.

In response, counsel for Yingst/GNYH argued:

Briefly, if I may respond, Your Honor, clearly what was said in 

argument does not constitute grounds for a mistrial. It’s not 

evidence. It’s argument.
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But with respect to [appellants’ counsel’s] now angst about 

attorney/client privilege, he knew of the assertion of the 

privilege during the depositions. He could have filed a motion in 

limine as we did to preclude certain evidence. He failed to do so. 

The fact is at the deposition the attorney/client privilege had not 

been waived. Subsequent conversations with Shirley, who holds 

the privilege, that privilege has been waived and the testimony 

is going to come in. 

The fact that [appellants’ counsel’s] failed to do any type of 

pretrial filings, the fact that he didn’t file any pretrial motions 

seeking a ruling on that or an assertion of that in any way, you 

know, to raise it now is absurd. 

[Shirley] is here. She will tell you the privilege has been waived. 

He may be unhappy with it, but it’s his own fault. He didn’t do 

anything preemptively to try to get a ruling on that.

Id. at 64–65. The court then asked Shirley’s counsel his position, and he 

stated, “My client is prepared to waive that privilege.” Id. at 65. The 

discussion continued:

[COUNSEL FOR APPELLANTS]: Your 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 [the Decedent]. 

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, and I would respectfully 

submit that the very least, at the very least trial should be 

adjourned and I should be permitted to depose both Defendants 

now that they want to waive attorney/client privilege because 

trial is not supposed to be by ambush. 
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And had they informed me at any time prior to opening 

argument, I know Your Honor would have no doubt that I would 

have requested that examination.

[COUNSEL FOR YINGST/GNYH]: Your Honor, the objections were 

on the record. At no time did [Appellants’ counsel] ever file a 

motion to overrule the objections, which is the typical pretrial 

practice leading into trial, nor did he file a motion in limine. 

You know, he is obviously scrambling for a reason to seek an 

adjournment here or a discontinuance of today’s or this week’s 

proceedings for reasons I don’t understand, but there’s 

absolutely no basis for mistrial and no basis for [Appellants’ 

counsel’s] objections.

[COUNSEL FOR APPELLANTS]: If I may, I was – I 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. 

That was our position. 

And because they had no indication and persistently argued that 

they were asserting the privilege and that the privilege was not 

being waived, this is an unfair surprise.

Id. at 65–66.

Immediately thereafter, the trial court ruled:

All right. Motion for mistrial denied and the Court is satisfied that 

the previous instructions regarding statements of counsel not 

being evidence covers the problem. All right .... Thank you.

Id. at 66-67.

Here, it is clear that appellants’ counsel was aware that there had 

been assertion, non-assertion, and “irregular” assertion of attorney-client 

privilege in this case prior to trial. Additionally, appellants’ counsel’s trial 

tactic was to “bind the parties to the testimony they gave during the 
J-S31026-16

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depositions.”5 Appellants’ counsel knew the privilege could be “waived upon 

trial by the client.” 42 Pa.C.S. § 5928.

In light of the pre-trial issues concerning Shirley’s attorney-client 

privilege, counsel had the ability to either contest the assertion of the 

privilege by Shirley or file a motion in limine to preclude introduction of any 

previously privileged information. He did not do so. This failure negates his 

claim he was “sandbagg[ed].”6 

Therefore, I disagree with the Majority that Appellants’ counsel was 

“ambush[ed]”7 when Shirley waived her attorney-client privilege at trial. In 

my view, in this case, counsel’s failure to obtain a ruling from the trial court 

prior to trial cannot create “unfair surprise.”8 Accordingly, I would find no 

abuse of discretion by the trial court’s denial of the request for 

mistrial/curative instruction.

With regard to a motion for nonsuit, our standard of review is wellsettled:

[T]he trial court, on the oral motion of a party, may enter a 

nonsuit if the plaintiff has failed to establish a right to relief. 

Pa.R.C.P. 230.1, 42 Pa.C.S.A. In evaluating the trial court’s 

grant of a nonsuit, “we must view the evidence adduced on 

____________________________________________

5 N.T., 3/16/2015–3/18/2015, at 66.

6

Id. at 64.

7 Majority Opinion, at 17.

8 N.T., 3/16/2015–3/18/2015, at 66.
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behalf of the [plaintiff] as true, reading it in the light most 

favorable to [him]; giving [him] the benefit of every reasonable 

inference that a jury might derive from the evidence and 

resolving all doubts, if any, in [his] favor.” Sinclair by Sinclair 

v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993). 

Accord Taliferro v. Johns-Manville Corp., 421 Pa. Super. 

204, 208, 617 A.2d 796, 799 (1992). Additionally, a compulsory 

nonsuit may be entered only in cases where it is clear that the 

plaintiff has not established a cause of action.... When so 

viewed, a nonsuit is properly entered if the plaintiff has not 

established a cause of action.... Taliferro[], 421 Pa. Super. at 

208, 617 A.2d at 799. With respect to the trial court's 

evidentiary rulings, “[q]uestions concerning the admission and 

exclusion of evidence are within the sound discretion of the trial 

court and will not be reversed on appeal absent an abuse of 

discretion. The basic requisite for the admissibility of any 

evidence in a case is that it be competent and relevant.” Moran 

v. G. & W.H. Corson, Inc., 402 Pa. Super. 101, 125, 586 A.2d 

416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 

(1992).

In re Estate of Boardman, 80 A.3d 820, 822 (Pa. Super. 2013).

The trial court, in its opinion, explained:

Finding that Plaintiffs had not met their burden to establish by 

any sufficient evidence the elements of the claims alleged in 

their Complaint, the Court entered non-suit on March 18, 2015.

 

Plaintiffs believe they are entitled to the money held jointly by 

Defendant [Shirley] Greguras and/or Attorney Yingst committed 

some sort of fraud or breach of duty that prevented them from 

accessing those assets. This belief is strongly, but incorrectly 

held.

** **

The law is clear. The Pennsylvania Multiple-Party Act (MPAA) 

provides that “[a]ny sum remaining on deposit at the death of a 

party to an account belongs to the surviving party or parties as 

against the estate of the decedent unless there is clear and 

convincing evidence of a intent at the time the account was 
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created.” 20 Pa.C.S.A § 6304. In addition, the MPAA states that 

“[a] right of survivorship arising from the express terms of an or 

under this section, or a beneficiary designation in a trust account 

cannot be changed by will.” Id. The MPAA is clearly applicable in 

this case. Only clear and convincing evidence of fraud could 

overcome the application of the MPAA and, as the record clearly 

shows, Plaintiffs produced no evidence of fraud at trial. There 

was a written, unambiguous will. Plaintiffs repeated attempts to 

introduce evidence of testamentary intent were inappropriate 

and, further, would not have been sufficient to establish a claim 

of fraud in any case. 

There was also no evidence that could sustain the claim for 

intentional infliction of emotional distress. The Court informed 

Plaintiffs’ counsel multiple times that expert medical testimony 

was necessary to maintain such a claim. Wecht v. PG 

Publishing, 725 A.2d 788 (Pa. 788 (Pa. Super. 1999); McCann 

v. Amy Joy Donut Shops, [472] A.2d 1149, 1151 (1984); 

Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988 

(Pa. 1987). It has further been held that medical records are 

not sufficient for causation and that medical expert reports are 

necessary. Hoffman v. Brandywine Hosp., 661 A.2d 397 (Pa. 

Super. 1995).

Finally, the claim that Defendant [Shirley] Greguras failed to 

properly administer her late husband’s estate was without merit 

as she was under no duty to so administer his estate.[9] Neither 

Defendant [Shirley] Greguras or Attorney Yingst and his firm 

acted in any outrageous manner and the punitive damages claim 

was also properly non-suited.

Trial Court Opinion Denying Plaintiffs’ Motions for Post-trial Relief, 

8/10/2015, at 1–5 (unnumbered). The record supports the trial court’s 

analysis.

____________________________________________

9 Shirley was the named executrix of the Decedent’s will, dated March 2, 

2000. However, as the Decedent’s assets were jointly held with Shirley and 

did not pass under the will, Shirley had no obligation to probate the will 

when he died in 2007.
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Here, regardless of whether Yingst advised Shirley and the Decedent 

or did not advise them in 2000 that placing assets in joint names would 

defeat the provisions of the Decedent’s will, there was no evidence of the 

Decedent’s intent with respect to the disputed assets that were placed in 

jointly titled accounts in 2004, some four years later. 10 The trial court’s 

analysis of the MPAA is correct; the joint accounts were the property of 

Shirley upon the Decedent’s death, and I agree that there was no evidence 

of fraud presented at trial. Furthermore, I agree with the trial court and the 

Majority that the claim of intentional infliction of emotional distress fails for 

lack of an expert report. Additionally, Appellants’ evidence provided no basis 

for punitive damages.

Accordingly, I would affirm the judgment entered upon the entry of 

nonsuit in favor of Appellees. Therefore, I dissent.

____________________________________________

10 Appellants’ evidence showed the Decedent and Shirley had a joint 

checking account that was opened in 1976, and two joint accounts 

(certificates of deposit), titled in the names of the Decedent and Shirley, that 

were opened in 2004. Date of death balances for these accounts were 

$113,423.26, $111,466.79, and $111,466.79, respectively. See N.T., 

3/16/2015–3/18/2015, at 78; Plaintiffs’ Exhibit 7.