Case Information
*1 IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT PITTSBURGH HISTORY AND : No. 199 WAL 2017 LANDMARKS FOUNDATION, A :
PENNSYLVANIA NON-PROFIT :
CORPORATION; LANDMARKS : Petition for Allowance of Appeal from FINANCIAL CORPORATION, A : the Order of the Commonwealth Court PENNSYLVANIA NON-PROFIT :
CORPORATION; HENRY P. HOFFSTOT, : :
STEPHAICH; PATRICK R. WALLACE; : : :
: : : : : : : HISTORY AND LANDMARKS
LANDMARKS FINANCIAL
CORPORATION, A PENNSYLVANIA
PETITION OF: ARTHUR P. ZIEGLER JR.,
MARK S. BIBRO, JACK R. NORRIS,
PITTSBURGH HISTORY AND
LANDMARKS AND FOUNDATION
CORPORATION
PITTSBURGH HISTORY AND No. 219 WAL 2017 LANDMARKS FOUNDATION, A
PENNSYLVANIA NON-PROFIT
CORPORATION; LANDMARKS Cross Petition for Allowance of Appeal FINANCIAL CORPORATION, A from the Order of the Commonwealth PENNSYLVANIA NON-PROFIT Court
CORPORATION; HENRY P. HOFFSTOT,
JR.; DAVID E. BARENSFELD; PETER H.
STEPHAICH; PATRICK R. WALLACE;
ALEXANDER SPEYER; AND HENRY P.
HOFFSTOT, III
HISTORY AND LANDMARKS
CORPORATION, A PENNSYLVANIA
PETITION OF: HENRY P. HOFFSTOT,
STEPHAICH; PATRICK R. WALLACE;
ORDER
PER CURIAM
AND NOW , this 1 st day of November, 2017, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by the Parties, are:
Petitioners’ Issues at 199 WAL 2017
a. Whether, in the context of derivative litigation, the Commonwealth of
Pennsylvania will adopt the qualified attorney-client privilege, the scope of which is subjectively determined, as articulated in the often criticized decision of Garner v. Wolfinbarger , 430 F.2d 1093 (5th Cir. 1970), cert. denied , 401 U.S. 974 (1971), and as articulated in the Restatement (Third) of the Law Governing Lawyers, § 85, where the ambiguous and uncertain scope of such a privilege is inconsistent with Pennsylvania Supreme Court precedent and in conflict with the Pennsylvania statute codifying the attorney-client privilege.
b. Whether, even if this Court adopts Garner ’s qualified attorney -client
privilege as the law of Pennsylvania, such a privilege is applicable to derivative litigation that arises out of disputes between former Board members and current Board members with no corresponding fiduciary relationship.
Respondents’ Issues at 219 WAL 2017
a. Whether the fiduciary duty exception to the attorney-client privilege is
applicable to discovery sought by either the derivative not-for-profit corporate Plaintiff or the purportedly removed Trustees of the not-for-profit corporation who are bringing the derivative action, when the corporation received and/or paid for the advice in question which was given regarding and at the time of events occurring while the individual Plaintiffs were unquestionably Trustees.
b. Whether the common interest or co-client exception to the attorney-client
privilege is applicable to discovery sought by either the derivative not-for- profit corporate Plaintiff or the purportedly improperly removed Trustees of the not-for-profit corporation who are bringing the derivative action, when the corporation received and/or paid for the advice in question, which was given regarding and at the time of events occurring while the individual Plaintiffs were unquestionably Trustees.