Gregury, J. v. Greguras, S.
1467 MDA 2015
| Pa. Super. Ct. | Nov 22, 2016Background
- Decedent Adolf Greguras died leaving a will (2000) that bequeathed 1/2 to his wife Shirley and 1/4 each to his two children (Appellants John Gregury and Barbara Robey). Some assets, however, were held in joint accounts and by operation of law passed to Shirley outside the will.
- Appellants sued Shirley, the Estate, attorney James Yingst, and his firm (GNYH) asserting claims including constructive trust/probate/accounting, fraud, breach of contract, and intentional infliction of emotional distress, alleging Decedent’s testamentary intent was frustrated and assets were wrongfully kept out of the estate.
- Pretrial, the court granted motions in limine excluding (1) unauthenticated handwritten notes and oral testimony about Decedent’s testamentary intent (parol evidence/hearsay concerns) and (2) medical records and testimony about Appellants’ emotional distress for lack of an expert.
- After Appellants’ case-in-chief at trial, the court granted Appellees’ motion for nonsuit; post-trial motions denied and appeal followed.
- On appeal the Superior Court affirmed exclusion of the testamentary-intent evidence and medical evidence, but held it was reversible error for the trial court to permit Shirley to waive attorney-client privilege at trial after having asserted it throughout discovery, amounting to trial by ambush.
- Result: judgment vacated, nonsuit reversed, case remanded for additional discovery and a new trial due to prejudicial late waiver of privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of oral testimony about Decedent's testamentary intent | Parol evidence admissible to resolve ambiguity caused by assets passing outside the will | Will is clear; extrinsic evidence cannot create ambiguity; MPAA survivorship controls joint accounts | Exclusion affirmed — will unambiguous; parol evidence not permissible to create ambiguity |
| Admissibility of handwritten notes purportedly showing intent | Notes would show Decedent intended assets to pass under will | Notes are hearsay, unauthenticated, irrelevant without timing/purpose | Exclusion affirmed — hearsay and lacking authentication/relevance |
| Admissibility of medical records/testimony re: emotional distress | Medical records show severe distress; admissible without expert | Expert required to prove fact and causation of severe emotional distress | Exclusion affirmed — expert testimony required under Kazatsky and Wecht |
| Waiver of attorney-client privilege at trial after asserting it in discovery | Late waiver is unfair and prejudicial; prevented proper discovery and preparation | Privilege holder may waive at trial; no need for mistrial or extra discovery | Reversed — late waiver was abuse of discretion; prejudicial; remand for more discovery and new trial |
Key Cases Cited
- Rachlin v. Edmison, 813 A.2d 862 (Pa. Super. 2002) (standard of review for motions in limine and evidentiary rulings)
- Herr Estate, 161 A.2d 32 (Pa. 1960) (parol evidence admissible to resolve ambiguities in wills)
- In re Novosielski, 992 A.2d 89 (Pa. 2010) (joint-account survivorship may substitute for testamentary device)
- In re Estate of Harper, 975 A.2d 1155 (Pa. Super. 2009) (extrinsic evidence cannot be used to create ambiguity in a will)
- In re Estate of Schultheis, 747 A.2d 918 (Pa. Super. 2000) (latent vs. patent ambiguities and limits on parol evidence)
- Kazatsky v. King David Memorial Park, 527 A.2d 988 (Pa. 1987) (expert required to prove severe emotional distress)
- Wecht v. PG Publ. Co., 725 A.2d 788 (Pa. Super. 1999) (expert testimony required as to fact and causation of emotional distress)
- Parker v. Freilich, 803 A.2d 738 (Pa. Super. 2002) (nonsuit may reconsider issues previously denied on summary judgment because plaintiff's case presentation can change facts)