196 A.3d 619
Pa. Super. Ct.2018Background
- Decedent (Adolf) died in 2007; his will (2000) left one-half to his wife Shirley and one-quarter each to his children John Gregury and Barbara Robey, but most assets were in joint accounts with Shirley and passed to her by operation of the MPAA.
- Appellants (John and Barbara) sued Shirley, attorney James Yingst, and Yingst’s firm alleging fraud, breach of contract, intentional interference with expectancy of inheritance, and related claims, asserting either (a) Yingst failed to advise about joint accounts passing outside the will, or (b) Shirley used that knowledge to transfer assets to joint title.
- During discovery, Shirley and Yingst repeatedly asserted the attorney‑client privilege to refuse to disclose what was said in meetings about assets; Appellants deposed both but did not obtain those communications.
- At trial, defense counsel announced in opening that Shirley and Yingst would testify about their discussions (effectively waiving privilege at trial); Appellants objected, sought a mistrial or time for additional discovery, and were denied; trial proceeded and court later granted a compulsory nonsuit for defendants.
- The Superior Court (en banc) reversed the nonsuit, holding that permitting a last‑minute waiver of a previously‑asserted privilege without allowing remedial measures (limited discovery or exclusion) was prejudicial and required a new trial; the Court also found the trial court erred in excluding two proffered handwritten documents which were sufficiently authenticated and not hearsay for the purpose offered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a party may invoke attorney‑client privilege through discovery and then voluntarily waive it at trial without notice, prejudicing the opponent | Waiver at trial after asserting privilege in discovery is unfair surprise and equates to trial by ambush; merits relief (mistrial or time for discovery) | Statute permits waiver "upon the trial by the client"; plaintiffs should have filed pretrial motion in limine or motion to compel earlier | Court held last‑minute waiver after asserting privilege in discovery can cause unfair prejudice; trial court abused discretion by not excluding the privileged testimony or allowing limited discovery — remand for further proceedings |
| Whether the trial court erred in excluding two unsigned, undated handwritten documents by Decedent | Documents could be authenticated by witness familiar with handwriting and used to show Decedent’s mental state/calculation (not to vary will) | Documents unauthenticated hearsay and irrelevant without date/signature; cannot be used to contradict testamentary intent | Court held prima facie authentication existed (witness familiarity + circumstantial content); documents were not hearsay for the purpose offered and exclusion was erroneous — admission for jury decision was appropriate |
| Whether trial court erred in precluding medical records/psychiatric material to prove John’s severe emotional distress without expert testimony | Medical records show distress and causation sufficient to support IIED claim | Expert medical testimony is required to prove the fact of severe emotional distress and causation | Court affirmed exclusion: expert medical testimony (not medical records alone) is required to substantiate severe emotional distress claims |
| Whether nonsuit was proper after the events at trial | Appellants contended nonsuit was improper because prejudicial waiver and erroneous evidentiary rulings deprived them of a fair trial | Defendants argued legal issues had been previously rejected and nonsuit appropriate | Because of prejudicial late waiver and erroneous exclusions, nonsuit reversal and new trial were required — judgment vacated and remanded |
Key Cases Cited
- In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (describing purpose and scope of attorney‑client privilege)
- Guy v. Liederbach, 459 A.2d 744 (Pa. 1983) (attorney liable to named legatees for malpractice causing failed legacy)
- Salsman v. Brown, 51 A.3d 892 (Pa. Super. 2012) (discussing subject‑matter waiver where privilege used as shield and sword)
- Domako v. Rowe, 475 N.W.2d 30 (Mich. 1991) (disallowing last‑minute waiver of physician‑patient privilege when it causes unfair surprise)
- Seattle Northwest Sec. Corp. v. SDG Holding Co., 812 P.2d 488 (Wash. App. 1991) (requiring election on privilege before discovery deadline to avoid trial by ambush)
- SEC v. Graystone Nash, 25 F.3d 187 (3d Cir. 1994) (recognizing prejudice from belated waiver of Fifth Amendment privilege during civil litigation)