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                              2018 PA Super 261


 JOHN M. GREGURY AND BARBARA J.            :    IN THE SUPERIOR COURT OF
 ROBEY                                     :         PENNSYLVANIA
                                           :
                    Appellants             :
                                           :
                                           :
              v.                           :
                                           :
                                           :    No. 1467 MDA 2015
 SHIRLEY M. GREGURAS AND ESTATE            :
 OF ADOLF GREGURAS, AND JAMES              :
 T. YINGST AND GUTHRIE,                    :
 NONEMAKER, YINGST & HART                  :

             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: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.


DISSENTING OPINION BY OTT, J.:                   FILED SEPTEMBER 20, 2018

      I respectfully dissent. While the Majority provides a thoughtful analysis

of at-trial waiver of the attorney-client privilege, I believe the trial court did

not abuse its discretion in denying the motion for mistrial in light of 42 Pa.C.S.

§ 5928, which permits the privilege to be waived “upon the trial by the client,”

and the circumstances of this case. Furthermore, I am of the view that the

trial court properly refused to admit into evidence unsigned, undated

handwritten documents offered to prove Decedent’s testamentary intent on

grounds of hearsay and relevancy. Therefore, I would affirm the judgment

entered upon the grant of nonsuit in favor of Appellees.
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       The issue of attorney-client privilege was present in this case from its

very inception. Decedent’s will, prepared by Yingst, was executed in March,

2000.1 Based upon Appellants’ alternative allegations of breach of contract

(third party beneficiary) and fraud in the amended complaint, Appellants

needed to prove either that Yingst failed to adequately advise Decedent

and Shirley regarding the effect of jointly-held property on the estate plan, or

that Shirley committed fraud by manipulating assets into jointly-held accounts

with right of survivorship to frustrate Decedent’s testamentary intent.2

       Section     5928     of   the     Judicial   Code,   governing   confidential

communications to attorney, 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 the same, unless in
       either case this privilege is waived upon the trial by the
       client.

42 Pa.C.S. § 5928 (emphasis supplied).

       Pennsylvania law recognizes that “the right to assert the [attorney-

client] privilege is that of the client.” Commonwealth v. McKenna, 213 A.2d


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1 In March, 2000, Decedent would have been 80 years of age, based on his
May, 1919 birth date. See Plaintiff’s Exhibits 5 and 6. Shirley would have
been 75 years of age, as she was 90 years old at the time of the March, 2015
trial. See N.T., 3/16-18/2015, at 58.

2 It is unclear whether Appellants are contending Shirley acted fraudulently as
to all jointly held assets or only as to the two certificates of deposit titled
jointly with right of survivorship that were opened in 2004. See e.g.,
Amended Complaint, 9/1/2010, at ¶¶ 29 and 31; Appellants’ Brief at 11.


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223, 226 (Pa. Super. 1965), citing Estate of Dowie, 19 A. 936 (Pa. 1890).

See also Maleski by Chronister v. Corp. Life Ins. Co., 646 A.2d 1, 4 (Pa.

Cmwlth. 1994) (“The purpose of the attorney-client privilege is to benefit the

client, and accordingly, the client is the holder of the privilege.”).

Furthermore, “[t]he failure to assert a privilege constitutes a waiver thereof.”

Commonwealth v. Kauffman, 605 A.2d 1243, 1248 (Pa. Super. 1992). In

addition, “absent other considerations, a right or privilege once waived is

always waived and [] the defendant who waives a right or privilege cannot

thereafter object to the use that is made of the formerly privileged

communications.” Commonwealth v. Rosen, 42 A.3d 988, 995 (Pa. 2012)

(citation omitted).

      In this case, attorney-client privilege arose during pre-trial discovery in

two   contexts.       First,   Yingst   asserted   the   privilege   regarding   any

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

attorney-client privilege regarding communications with Shirley when her

daughter was also present. Appellants’ counsel argued to the court prior to

trial that there were “irregular assertions of attorney client privilege” where

Yingst “disclosed some content of communications; but selectively declined to

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




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

selective attorney client communication disclosures.”3

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

attorney-client privilege, as follows:

       ... Defendant Yingst claimed that he had gave [sic] 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.

       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 [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., 3/16-18/2015, at 37 (emphasis added). Thereafter, counsel for Yingst,

in his opening, told the jury:

       … 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 down to their
       children, plain and simple.

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3 Plaintiffs’ Trial Brief, 3/10/2015, at 12, 14 (capitalization removed; emphasis
in original); Plaintiffs’ Brief in Opposition to the Motions for Summary
Judgment, 5/1/2014, at 12, 14 (capitalization removed; emphasis in original).


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      You’re going to hear Mr. Yingst testify that he had the meeting
      with [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 that you are both owners on,
      they don’t come inside the will.

Id. at 51–52.

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

had been excused for lunch, Appellants’ counsel moved for a mistrial, based

on Yingst’s counsel’s implication that Shirley would waive the attorney-client

privilege and Appellees would testify on matters they claimed were privileged

at their depositions.     The trial court entertained argument and thereafter

denied the motion, and allowed the trial to proceed. Based upon my review,

I find no basis upon which to disturb the decision of the trial judge.

      “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

an abuse of discretion.” Bugosh v. Allen Refractories Co., 932 A.2d 901,

914-15 (Pa. Super. 2007) (quotations and citation omitted). “An abuse of

discretion may not be found merely because an appellate court might have

reached   a   different    conclusion,   but   requires   a   result   of   manifest

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).


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      Here, for good reason, Shirley did not waive the privilege prior to trial

since, once waived, she would not be able to reinvoke it. See Rosen, supra,

42 A.3d at 995. However, as provided by statute, Shirley was free to waive

her attorney-client privilege “upon the trial.” 42 Pa.C.S. § 5928. Therefore,

it was reasonable that she would waive her privilege, if at all, only when

Appellants’ counsel argued to the jury in his opening statement that Appellees

“exercised attorney/client privilege inconsistently in their depositions” and the

jury “could consider that in assessing [Appellees’] credibility.”          N.T.,

3/16-18/2015, at 37 (emphasis added). Under these circumstances, counsel’s

own trial strategy cannot create “unfair surprise.” Id. at 66.

      Furthermore, it is clear that Appellants’ counsel believed prior to trial

that there had been “irregular” assertion of attorney-client privilege by

Appellees during discovery, and raised this argument on three separate

occasions — in deposing Yingst (Yingst Deposition, 9/13/2012, at 58) in

Appellants’ brief in opposition to the summary judgment motions filed by

Shirley and Yingst, and in Appellants’ trial brief.       As discussed above,

Appellants’ counsel argued in his opening statement that Appellees’

inconsistent exercise of attorney-client privilege was a credibility matter.

Significantly, Appellants’ counsel explained to the court at sidebar that he “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.” N.T., 3/16-18/2015, at 66.


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        Given Appellants’ counsel’s belief there were “irregular” assertions of

the privilege in discovery and his trial strategy to attack Appellees’ credibility,

and in light of Section 5928 that allows waiver of the privilege “upon the

trial,” Appellants’ counsel had every reason prior to trial to file a motion in

limine to preclude Shirley’s waiver of the attorney-client privilege at the time

of trial. He did not do so.

        The Majority states that Section 5928 is not dispositive of the issue and

analyzes the timing of the waiver in this case “in the context of our discovery

and pretrial rules.”4 I disagree with this approach and believe the cases cited

by the Majority are not helpful to the circumstances of the instant case.

        The Majority cites Salsman v. Brown, 51 A.3d 892 (Pa. Super. 2012),5

which relied on Nationwide Mutual Ins. Co., v. Fleming, 924 A.2d 1259,

1265 (Pa. Super. 2007), for the proposition that “A litigant attempting to use

attorney-client privilege as an offensive weapon by selective disclosure of

favorable privileged communications has misused the privilege; waiver of the

privilege for all communications on the same subject has been deemed the

appropriate response to such misuse.” Salsman, 51 A.3d at 895 n.3. Here,

however, the issue does not concern the sanction of waiver for selective




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4   Majority Opinion at 14.

5   See Majority Opinion at 15.


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disclosure, but rather concerns Shirley’s right to voluntarily waive the privilege

“upon the trial” pursuant to 42 Pa.C.S. § 5928.

        Likewise, the Allegheny County case, Haas v. Bowman, 62 D. & C. 4th

1 (Allegheny Co. 2003), and certain federal cases cited therein, which are

discussed by the Majority,6 are inapposite.       In Haas, the issue of at-trial

waiver of Fifth Amendment privilege arose in the context of a request for

sanctions against defendants who had asserted their Fifth Amendment

privilege in response to discovery requests. The Honorable R. Stanton Wettick

opined that “ordinarily, a party who has avoided discovery by asserting the

Fifth Amendment privilege will not be permitted on the eve of trial to waive

his or her Fifth Amendment protections for the purpose of testifying at trial.”

Id. at 15. Judge Wettick further explained:

        at the request of a party, a court may set a time, based on a
        need of the parties to complete discovery, after which the party
        who has invoked the Fifth Amendment privilege will be barred
        from offering at trial his or her testimony on matters for which the
        Fifth Amendment was invoked to prevent discovery.

Id. (emphasis supplied), citing United States v. 4003-4005 Fifth Avenue,

55 F.3d 78, 85-86 (2d Cir. 1995); SEC v. Graystone Nash Inc., 25 F.3d 187,

191-92 (3d Cir. 1994); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553

(1st Cir. 1989); Dunkin' Donuts Inc. v. Taseski, 47 F. Supp.2d 867, 872-




____________________________________________


6   See id. at 15-16.

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73 (E.D. Mich. 1999). Here, in contrast to Haas and the cited federal cases,

there was no request for a pretrial ruling to preclude Shirley’s waiver at trial.

          The cases relied upon by Appellants in their brief,7 and discussed by the

Majority,8 are also unpersuasive in my view. Domako v. Rowe, 475 N.W.2d

30 (Mich. 1991), involved a Michigan statute, MCR 2.314(B)(1), that required

a party to timely assert the physician-patient privilege, or the privilege would

be lost. The Domako Court held the plaintiff had waived the physician-patient

privilege when she signed authorization forms permitting the release of

medical information, and she could not assert the privilege thereafter.        In its

discussion, the Michigan Supreme Court noted MCR 2.314(B)(2) precludes

waiver of physician-patient privilege regarding medical information once

asserted by a party, and that the statute requires assertion or waiver at the

pretrial stage. Id. at 32 n.1, 35.         Here, in contrast to the Michigan statute,

42 Pa.C.S. § 5928 allows waiver of the attorney-client privilege “upon the

trial.”

          Furthermore, in Seattle Northwest Sec. Corp. v. Sdg Holding Co.,

812 P.2d 488 (Wash. App. 1991), and Int’l Tel. & Tel.Corp. v. United Tel.

Co. of Florida, 60 F.R.D. 177 (M.D. Fla. 1973), the issue of attorney-client

privilege was raised and addressed by the court before trial.            In Seattle



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7   See Appellants’ Brief, at 32.

8   See Majority Opinion at 16-18.

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Northwest, the trial court entered an order of contempt and imposed

sanctions, including default judgment, for defendant’s failure to comply with

discovery orders. The Court of Appeals of Washington reversed and held the

discovery sought was protected by the attorney-client privilege, and

remanded for a factual hearing as to whether respondent’s other contentions

justified an order allowing discovery of the privileged documents or testimony.

The court further required that on remand, defendants make an election

whether or not to call counsel to testify.         Similarly, in Int’l Tel. and Tel.

Corp., the issue of waiver arose in the context of a motion to compel

discovery, and the Florida federal district court instructed, “if the defendant

intends to waive the privilege at trial by introduction of evidence within the

privilege, then the defendant will be required to allow discovery with regard

to matters material to that testimony.” 60 F.R.D. at 186.         Thus, these cases

discuss at-trial waiver in the context of discovery disputes.

        The Majority likens the instant situation to circumstances where there is

late amendment of an expert report or an expert attempts to testify beyond

the scope of the expert report.9          The Majority also relies on the duty to

supplement ongoing discovery to challenge Shirley’s at-trial waiver. However,

there is a substantive difference between the statute and discovery rules.

While it may be laudable to require a party to choose between asserting or



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9   See Majority Opinion at 19.

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waiving privileged communications prior to completion of discovery, that

policy goes beyond our discovery rules and our statutory privilege. This Court

should not superimpose discovery rule concepts upon Section 5928 but

instead leave that consideration to the Legislature or the Rules Committee.

        The record also reflects that during argument on the motion for mistrial,

Appellants’ counsel requested a preclusion order or postponement of the trial

to depose Shirley and Yingst since they were no longer asserting the privilege.

See N.T., 3/16-18/2015, at 65. However, as pointed out by the trial judge in

his Rule 1925(a) opinion, there had been six years of discovery in this case.10

Thus, Appellants’ counsel had ample opportunity prior to trial to resolve the

potential issue of waiver of attorney-client privilege that is permitted under

our statute.

        Finally, I note that we apply a deferential standard of review to the

denial of a motion for mistrial and, for the reasons set forth above, I discern

no abuse of discretion by the trial court in denying Appellants’ motion for

mistrial and requests for a preclusion order or continuance.11 I disagree with

the Majority that “countenancing what occurred herein would only encourage


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

11Because I do not believe the trial court erred in denying the motion for
mistrial and alternative requests for relief, I do not reach the harmless error
analysis.




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parties to use privilege, which is not favored, to flout the discovery rules in

order to gain an unfair tactical advantage.”12           The Majority has taken the

position that last minute at-trial waiver of the attorney-client privilege violates

discovery. I believe, however, that given Appellants’ counsel’s stated intent

in his opening to use Appellees’ inconsistent exercise of the privilege to attack

credibility, this case does not represent a case where we should adopt the

Majority’s position against late waiver.           Rather, I believe that affirmance

upholds the language of the statute and is warranted under the facts of this

case.

        Nor do I agree that the trial court abused its discretion in refusing to

admit into evidence certain unsigned, undated handwritten notes proffered by

Appellants.    These documents are described by Appellants as “documents

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

calculation of what half of those assets would be.” Appellants’ Brief at 12.

        Prior to trial, Shirley and Yingst each filed a motion in limine to preclude

the handwritten documents and oral testimony that they anticipated

Appellants would seek to introduce at trial to show Decedent’s testamentary

intent.    Regarding the handwritten notes, Appellants responded, “All are

relevant and subject of proper authentication.” Plaintiffs’ Response to All

Defendants’ Omnibus Motions in Limine, at 4.             Appellants maintained that



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12   Majority Opinion at 22.

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“[t]he handwritten documents separately and together support the express

language of the will as intending ¼ of the joint property to pass to each of the

Plaintiffs.” Id. at 6. The pre-trial judge granted Appellees’ motions in limine,

ruling that the handwritten documents were inadmissible on the grounds of

authentication, hearsay, and relevance.            See Order Granting Motions in

Limine, 3/6/2015.

       While the coordinate jurisdiction rule applied to the pre-trial order,13

Appellants’ counsel, at trial, made supplemental proffers of authentication

evidence for the handwritten documents. See N.T., 3/16-18/2015, at 292-

293, 405-407.        Following the testimony of John Gregury’s wife, Eileen,

Appellants’ counsel acknowledged that there was “an exclusionary order for

use of documents for the purpose of showing [Decedent’s] intent with regard

to the disposition of property,” but sought to use two of the handwritten

documents to “show value of the estate.” N.T., 3/16-18/2015, at 290.

Appellants’ counsel proffered additional authentication testimony, and argued



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13 “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 Hosp., 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. (citation omitted). “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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the date of death balances on the 2007 bank statements correlated to the

numbers on the handwritten documents found in Decedent’s house in 2008.

Yingst’s counsel objected, stating that the documents were undated, that they

did not correlate, and that aside from the authentication issue, the documents

were inadmissible based upon hearsay and relevance. The trial judge rejected

the proffer and adhered to the pre-trial judge’s ruling.

      Later in the trial, after the testimony of Barbara Robey’s husband,

Wayne, Appellants’ counsel made another proffer, offering additional

authentication evidence that Wayne Robey would testify that Decedent gave

him a piece of paper in 2000, with names of banks, and “[i]t had amounts in

the bank, and it was on the same stationery as the other pieces of paper that

John [Gregury] found in the house”      in 2008. Id. at 406. The trial judge

sustained Yingst’s counsel’s objection and allowed his prior ruling to stand.

      Our standard of review is well settled:

      Admission of evidence is within the sound discretion of the trial
      court and we review the trial court's determinations regarding the
      admissibility of evidence for an abuse of discretion. To constitute
      reversible error, an evidentiary ruling must not only be erroneous,
      but also harmful or prejudicial to the complaining party.

Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015)

(citation omitted).

      Here, Appellants proffered additional testimony of witnesses who could

identify the handwriting and stationery as Decedent’s for authentication

purposes,   and   therefore,   I   recognize    there   is   no   issue   regarding


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authentication. However, aside from authentication, the trial court excluded

the documents on grounds of hearsay and relevancy.14

        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). Hearsay is

inadmissible unless an exception applies. Pa.R.E. 802.

        Appellants’ proffered evidence included one handwritten document that

listed amounts of various assets and calculated one-half value of those assets.

While the Majority finds that the handwritten documents are not hearsay

because Appellants offered the handwritten documents “for the fact of their

creation,”15 Appellants argue in their appellate brief these handwritten

documents were proffered as proof of Decedent’s testamentary intent.16

Therefore, because Appellants offered the handwritten documents and

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14 In their brief, Appellants only address authentication and do not address
the grounds for exclusion based on hearsay and relevance. See Appellants’
Brief, at 26-28.

15   Majority Opinion at 28.

16 See Appellants’ Brief at 23 (“The Trial Court Err[ed] in Precluding Oral and
Written Evidence of [Decedent’s] Testamentary Intent”); id. at 26 (“Plaintiffs
proffered notes they found at [Decedent’s] house which included an accurate
list of his assets with calculations consistent with the ½, ¼, and ¼ distribution
scheme which was called for in the will.”); id. at 28 (“The handwritten
documents separately and together support the express language of the will
as intending all property of whatever kind to [Shirley] and each of the Plaintiffs
in the designated portions.”).




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calculations to show Decedent’s testamentary scheme — that is, the truth of

the matter asserted — I conclude the documents were hearsay.

        While the hearsay rule is subject to exceptions, none appears to be

applicable to these documents that are unsigned, undated, without a clear

purpose and meaning. The Majority points to Pa.R.E. 803(3), which provides

an exception for the declarant’s then-existing state of mind.17 However, as

more fully discussed below, Decedent’s state of mind is not evident from the

documents. Therefore, I do not agree that the exception applies herein.

        With regard to the issue of relevancy, Pa.R.E. 401 provides that

“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.” Furthermore, Pa.R.E. 402 states that

“All relevant evidence is admissible, except as otherwise provided by law.

Evidence that is not relevant is not admissible.”        Here, the handwritten

documents were not relevant because the date and reason for creation of the

documents cannot be determined.

        Although the Majority posits it would be possible to determine a date for

the documents based upon other evidence of bank statement balances,18 I do

not believe the trial court was required to accept the handwritten documents


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17   See Majority Opinion at 28 n.8.

18   See Majority Opinion at 28 n.7.


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based upon additional, proffered bank statements in the case. Moreover, the

reason for the documents is an unanswered question.

        Appellants argued the documents show Decedent’s express intent had

been frustrated because he did not understand right of survivorship of joint

property. However, the documents do nothing to advance that issue. Even if

the    trial    judge   had   determined       that   the   documents   were   properly

authenticated and that they correlated to the 2007 bank account balance

statements, the documents were properly excluded because they are not

relevant to the issue of what happened in 2000, when Decedent and Shirley

met with Yingst.

        The Majority states that “Once it was demonstrated that Decedent was

the author of the documents, their relevance lay in the fact that Decedent

thought there was a reason to calculate the value of one-half of the joint

assets.        Such evidence was probative on the issue whether Attorney Yingst

advised Decedent and Shirley about jointly-held property.”19 However, these

documents only show a calculation for one-half of the joint assets. There is

no dispositive language and no calculation for a one-fourth value of the joint

assets. As such, these documents are not relevant to the issue of what advice

Decedent received or understood regarding the right of survivorship in

jointly-held property.



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19   Id. at 28 n.8.

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      Furthermore, even if the documents show Decedent did a calculation,

the document is not probative because it is impossible to tell whether the

calculations stemmed from Yingst’s failure in 2000 to advise Decedent and

Shirley that property titled as joint tenants with right of survivorship would

not pass under the will, OR from Shirley’s actions to defraud Decedent, OR

from other reasons, such as Decedent and Shirley either misapprehending

Yingst’s advice OR forgetting Yingst’s advice in the four years between the

execution of their wills and the creation of the 2004 jointly-held accounts.

Therefore, in my view, the documents were inadmissible on grounds of

hearsay and relevance, and the trial court acted properly within its discretion

in refusing to admit the handwritten documents into evidence.

      Accordingly, I dissent.

      President Judge Gantman, Judge Lazarus and Judge Dubow join this

dissenting opinion.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2018




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