J-A10007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMI L. HUBER, ESQUIRE                  :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellee             :
                                         :
              v.                         :
                                         :
 SUSAN M. NOONAN, ESQUIRE                :
                                         :
                    Appellant            :        No. 3706 EDA 2017

               Appeal from the Order Dated October 13, 2017
               In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2017-0830


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED OCTOBER 23, 2018

      Appellant, Susan M. Noonan, Esquire, appeals from the order entered in

the Lehigh County Court of Common Pleas, which granted in part and denied

in part her motion to quash subpoena/motion for a protective order regarding

the subpoena of Appellee, Jami L. Huber, Esquire, to produce documents of

Appellant’s former client, relevant to estate litigation pending in Florida. We

affirm.

      The pertinent facts and procedural history of this case are as follows.

Appellant is a Pennsylvania attorney. On January 24, 1995, Appellant assisted

Clara Anna Claitor (“Decedent”) with the preparation of estate-planning

documents, including a trust. Decedent was a Pennsylvania resident at that

time. On May 5, 2015, Decedent sent Appellant a termination letter, stating

she no longer wanted Appellant’s law firm to represent her. Shortly after,


________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10007-18

Decedent relocated to Florida to live with her great-niece, Karen Nannette

Woods. On June 15, 2015, while living in Florida and with the assistance of a

Florida attorney, Decedent revised her estate plan, including the trust.

Significantly, Ms. Woods is the sole beneficiary under Decedent’s revised trust.

Decedent died in Florida on April 11, 2016.

        On November 23, 2016, Decedent’s relatives, William R. Irey, Dianne L.

McDonald, Susanne Buff, and Steven Irey, filed a complaint in the probate

division of Osceola County, Florida, against Ms. Woods, individually and as

beneficiary of the revised trust, and the co-trustees, asserting claims of

Decedent’s lack of testamentary capacity, undue influence, and tortious

interference, in an effort to set aside the revised trust.1 The plaintiffs claimed

they    were   beneficiaries   under   Decedent’s   Pennsylvania   testamentary

documents which Appellant had drafted. Appellee represents the plaintiffs in

the Florida litigation.

        On March 21, 2017, Appellee filed a subpoena in the Lehigh County

Court of Common Pleas, for the production of Appellant’s entire estate file on

Decedent. Specifically, the subpoena sought:

                          Documents to be Produced:

          1. [Appellant’s] entire file for [Decedent], including but not
          limited to copies of all estate planning documents contained
          therein, including Wills, Trusts, deeds, powers of attorney,
          advance directives, notes, memorandum, transcripts,
          correspondence, deeds, e-mails, texts, billing records,
          pictures and/or audio and video tape recordings.

1   See McDonald v. Woods, No. 16CP771TR (Fla. 9th Cir. Ct. Nov. 23, 2016).


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        2. Any and all documents relating to any communications
        between [Appellant] (or [Appellant’s] firm) and [Decedent].

        3. Any and all documents relating to any communications
        between [Appellant] (or [Appellant’s] firm) or [Decedent]
        and any and all of [Decedent’s] doctors, attorneys, care
        givers, health care providers, friends, and/or acquaintances,
        including Defendants.

        4. Any and all documents relating to any communications
        between [Appellant] (or [Appellant’s] firm) or [Decedent]
        and any and all of [Decedent’s] banks and brokerage firm.

        5. Any and all documents relating to any communications
        between [Appellant] (or [Appellant’s] firm) or [Decedent]
        and/or any other family member of [Decedent].

        6. All documents, including all communication, records or
        correspondence, in [Appellant’s] file or which may have
        been exchanged with any other individual concerning
        [Decedent], individually or as trustee of any trust, or any
        other individual(s) acting [on] [Decedent’s] behalf.

        7. Any and all documents concerning preparation, execution
        or validity of any testamentary instruments or testamentary
        substitutes for or concerning [Decedent].

        8. Any and all documents concerning any office policies or
        procedures for preparation, execution and/or storage of
        testamentary documents or substitutes concerning
        [Decedent].

(Appellee’s Subpoena for Production of Documents, filed March 21, 2017, at

10; R.R. at 19a). The subpoena was served on Appellant on April 18, 2017.

     On May 8, 2017, Appellant filed a motion to quash subpoena/motion for

protective order, claiming, inter alia, the documents sought are protected by

the attorney/client privilege and/or work product doctrine.    The trial court

granted Appellant’s motion on June 19, 2017, based on Appellee’s failure to


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respond in a timely manner. On June 23, 2017, Appellee filed a motion for

reconsideration and leave to file an answer nunc pro tunc. On July 10, 2017,

the court granted reconsideration, vacated its June 19, 2017 order, and

scheduled a hearing.

      The court held oral argument on September 6, 2017. The court framed

the issue as whether an attorney who prepared estate planning documents for

a client can be compelled to turn over her client’s file during a will contest

after the client’s death. The parties initially discussed whether Pennsylvania

or Florida law applied to the issue under a choice of law analysis. Appellant

claimed, inter alia, Pennsylvania law applies because the communications

between Appellant and Decedent occurred in Pennsylvania while Appellant and

Decedent were living in Pennsylvania, and Appellant drafted the relevant

estate   planning   documents    in   Pennsylvania.     Appellant   maintained

Pennsylvania’s attorney/client privilege protects the communications at issue

and prohibits her from turning over her former client’s file. Appellant claimed

the subpoena also sought notes, correspondence, and other memoranda in

relation to her representation of Decedent, which are protected by

Pennsylvania’s work product doctrine.

      Appellee argued, inter alia, Florida law should control the outcome of

this dispute because Decedent died in Florida, Decedent’s estate was probated

in Florida, litigation concerning Decedent’s estate is pending in Florida, and

the situs of the assets at issue is in Florida. Appellee explained the documents



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sought are discoverable under Florida law because Florida has a “testamentary

exception” to the attorney/client privilege.

      On October 13, 2017, the trial court granted Appellant’s motion to quash

subpoena/motion for a protective order in part, concerning any portion of the

subpoena requesting “opinion work product”; the court denied Appellant’s

motion in all other respects.    Appellant timely filed a notice of appeal on

November 10, 2017. On December 8, 2017, the trial court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b); Appellant timely complied on December 13, 2017.

      Appellant raises three issues for our review:

         WHETHER THE TRIAL COURT FAILED TO PROPERLY FOLLOW
         PENNSYLVANIA LAW GOVERNING THE CHOICE OF LAW
         ANALYSIS IN DISPUTES INVOLVING CLAIMS OF PRIVILEGE,
         WHERE PENNSYLVANIA LAW REQUIRES A COURT TO APPLY
         THE LAW OF THE STATE WITH THE GREATER PUBLIC
         POLICY INTEREST IN PROTECTING THE COMMUNICATIONS
         AT ISSUE, RATHER THAN THE GREATER INTEREST IN THE
         LITIGATION AS A WHOLE?

         WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT
         FLORIDA LAW APPLIED TO THE ISSUE OF WHETHER THE
         CONTENTS OF [APPELLANT’S] ESTATE PLANNING FILE, FOR
         HER FORMER CLIENT [DECEDENT], WAS PROTECTED FROM
         DISCLOSURE BY THE ATTORNEY-CLIENT PRIVILEGE, AS
         PENNSYLVANIA IS THE STATE WITH THE GREATER POLICY
         INTEREST IN APPLYING ITS ATTORNEY-CLIENT PRIVILEGE
         LAW?

         WHETHER THE TRIAL COURT ERRED BY ORDERING
         [APPELLANT] TO PRODUCE THE ESTATE PLANNING FILE
         FOR HER FORMER CLIENT, [DECEDENT], AS SUCH IS
         PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, AND
         THERE IS NO TESTAMENTARY EXCEPTION TO THE
         PRIVILEGE UNDER PENNSYLVANIA LAW?


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J-A10007-18



(Appellant’s Brief at 4).2

      Preliminarily: “[T]he appealability of an order directly implicates the

jurisdiction of the court asked to review the order.” Knopick v. Boyle, 189

A.3d 432, 436 (Pa.Super. 2018) (internal citation omitted). “Accordingly, this

Court has the power to inquire at any time, sua sponte, whether an order is

appealable.”   Id.   “If the discovery order requires the appealing party to

produce materials which the appealing party has asserted are privileged,

[Pa.R.A.P.] 313 applies, and we accept jurisdiction.” Id. at 437. See also

Pa.R.A.P. 313 (defining collateral order); Estate of Paterno v. National

Collegiate Athletic Association (NCAA), 168 A.3d 187 (Pa.Super. 2017)

(explaining general rule that discovery orders compelling disclosure of

potentially confidential and privileged materials are immediately appealable

as collateral to principal action); Berkeyheiser v. A–Plus Investigations,

Inc., 936 A.2d 1117, 1126 (Pa.Super. 2007) (recognizing that appellant’s

“colorable claim” of attorney/client privilege and work product doctrine can




2 In a footnote of her brief, Appellant mentions the court’s application of
Florida law to the work product doctrine and refers to that portion of the
court’s order directing Appellant to produce “fact work product.” Appellant,
however, did not specify that claim in her Rule 1925(b) statement, so any
issue of what constitutes “fact” work product is waived for purposes of this
appeal. See Greater Erie Indus. Development Corp. v. Presque Isle
Downs, Inc., 88 A.3d 222 (Pa.Super. 2014) (en banc) (holding failure to
comply with Rule 1925(b) order in civil cases constitutes automatic waiver of
issues raised on appeal); Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super.
2006) (explaining appellant’s failure to include or specify issue in Rule 1925(b)
statement waives that issue for purposes of appellate review).


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J-A10007-18

establish propriety of immediate appellate review).

      Instantly, Appellant presents a colorable claim of privilege concerning

the documents requested in Appellee’s subpoena, to satisfy the collateral

order doctrine. Thus, our jurisdiction is proper; and we can reach the merits

of Appellant’s issues.       See Pa.R.A.P. 313; Knopick, supra; Estate of

Paterno, supra; Berkeyheiser, supra.

      For purposes of disposition, we combine Appellant’s issues. Appellant

argues there is a “true conflict” between Pennsylvania and Florida law

concerning application of the attorney/client privilege to this discovery dispute

because Florida has a statutory broad testamentary exception to the

attorney/client privilege whereas Pennsylvania does not. Appellant asserts

the trial court misdirected the choice of law analysis, because it determined

Florida had the greater policy interest in the underlying estate litigation,

instead of focusing on which state had the greater interest concerning the

limited issue of attorney/client privilege. Appellant asserts Florida’s interest

in the particular matter at hand (attorney/client privilege) is minimal and

exceedingly attenuated.        Appellant stresses that Pennsylvania’s strong

interest   in   protecting   attorney/client    communications     made    between

Pennsylvania     attorneys    and   their      Pennsylvania   clients   within   this

Commonwealth requires application of Pennsylvania law. Appellant highlights

that Pennsylvania is: the state where the subpoena was served and all

discovery efforts are directed against Appellant; the situs of the entire



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attorney/client relationship in question, between Appellant and Decedent; and

where all communications between Appellant and Decedent took place.

Appellant concludes Pennsylvania law applies to this discovery dispute, the

requested documents are protected under the Pennsylvania attorney/client

privilege, and this Court must reverse the portion of the court’s order denying

her motion to quash subpoena/motion for a protective order. We disagree.

      “Whether    [the]   attorney-client   privilege   protects   a   particular

communication is a question of law. Our standard of review is de novo and

our scope of review is plenary.” Estate of Paterno, supra at 194 (internal

citations omitted). In conducting a choice of law analysis, the first step “is to

determine whether a conflict exists between the laws of the competing states.”

Budtel Associates, LP v. Continental Cas. Co., 915 A.2d 640, 643

(Pa.Super. 2006). If the laws of the competing jurisdictions do not conflict,

then further analysis is unnecessary, and we apply Pennsylvania law. Id. at

643-45.   “[A conflict] exists if there are relevant differences between the

laws.” McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 106 (Pa.

Super. 2015), appeal denied, 634 Pa. 749, 130 A.3d 1291 (2015). If the laws

of the competing states do conflict, however, then the second step is to

analyze the governmental interests underlying each of the conflicting laws.

Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).3 “The




3 In Griffith, our Supreme Court abandoned the earlier “place of the injury”
rule, providing that the laws of the state in which the injury or incident


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merit of such a rule is that it gives to the place having the most interest in the

problem paramount control over the legal issues arising out of a particular

context and thereby allows the forum to apply the policy of the jurisdiction

most intimately concerned with the outcome of the particular litigation.” Id.

at 22, 203 A.2d at 806 (internal citation and quotation marks omitted). This

choice-of-law framework applies in discovery disputes implicating claims of

privilege and in estate cases. See Carbis Walker, LLP v. Hill, Barth and

King, LLC, 930 A.2d 573, 578 (Pa.Super. 2007); In re Agostini’s Estate,

457 A.2d 861, 871 (Pa.Super. 1983).

      In conducting the interest analysis, the court must decide which state

has the most significant relationship or contacts with the issue before the

court. Budtel, supra at 643. This analysis does not involve simply counting

the number of contacts each state has with the matter at hand. Cipolla v.

Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970).             Rather, “[t]he

weight of a particular state’s contacts must be measured on a qualitative

rather than quantitative scale.” Id. “[T]his means we must determine which

state…has demonstrated, by reason of its policies and their connection and

relevance to the matter in dispute, a priority of interest in the application of

its rule of law.” In re Agostini’s Estate, supra at 871.

      Pennsylvania law defines the attorney/client privilege by statute:

         § 5928.          Confidential       communications           to

occurred governed the dispute, in favor of a more flexible approach. See id.
at 21, 203 A.2d at 805.


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           attorney

              In a civil matter counsel shall not be competent or
           permitted to testify to confidential communications made to
           [her] by [her] 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.A. § 5928. The purpose of the attorney/client privilege is to “foster

a confidence between attorney and client that will lead to a trusting and open

dialogue.”    Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222

(Pa.Super. 2003). “While the attorney-client privilege is statutorily mandated,

it has a number of requirements that must be satisfied in order to trigger its

protections. First and foremost is the rule that the privilege applies only to

confidential communications made by the client to the attorney in connection

with providing legal services.” Id. In some instances, in camera review may

be required to decide whether documents requested in discovery are protected

by the attorney/client privilege. Id. at 1223.

      Florida law codifies its attorney/client privilege, in pertinent part, as

follows:

           90.502. Lawyer-client privilege

           (1) For purposes of this section:

                                     *     *      *

              (c) A communication between lawyer and client is
              “confidential” if it is not intended to be disclosed to third
              persons other than:

              1.   Those to whom disclosure is in furtherance of the
              rendition of legal services to the client.


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           2.   Those reasonably necessary for the transmission of
           the communication.

        (2) A client has a privilege to refuse to disclose, and to
        prevent any other person from disclosing, the contents of
        confidential communications when such other person
        learned of the communications because they were made in
        the rendition of legal services to the client.

                                 *     *      *

        (4) There is no lawyer-client privilege under this section
        when:

                                 *     *      *

           (b) A communication is relevant to an issue between
           parties who claim through the same deceased client.

F.S.A. § 90.502(1)(c), (2), (4)(b).        The explanatory note to Section

90.502(4)(b) provides, in relevant part:

        Subsection (4)      This subsection codifies several well-
        established exceptions to the privilege:

                                 *     *      *

           (b) When multiple parties claim through the same
        decedent, as in a will contest or a challenge to testate or
        intestate succession, each party claims to best represent the
        interests of the deceased. To allow any or all parties to
        invoke the lawyer-client privilege prevents the swift
        resolution of the conflict and frustrates the public policy of
        expeditiously distributing estates in accordance with the
        testator’s wishes. …

F.S.A. § 90.502(4)(b), Note. See also Caputo v. Nouskhajian, 871 So.2d

266 (Fla. 5th DCA 2004), appeal denied, ___ Fla. ___, 884 So.2d 23 (2004)

(explaining Section 90.502(4)(b) permits discovery of communications



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otherwise protected by attorney/client privilege when multiple opposing

parties claim through same deceased client).

      Instantly, the trial court conducted a choice of law analysis to decide

whether     Pennsylvania     or   Florida   law    governed    application      of   the

attorney/client privilege to this discovery dispute in the Florida estate case, as

follows:

           A. WHETHER FLORIDA LAW OR PENNSYLVANIA LAW
           IS CONTROLLING?

           This matter has been brought in a Pennsylvania court.
           Therefore, Pennsylvania choice of laws analysis provides the
           framework to decide whether Pennsylvania or Florida law
           applies. …

           First, the court must determine whether there is an actual
           conflict between the potentially applicable laws. Here, an
           actual conflict exists between the laws of Pennsylvania and
           Florida as it relates to this discovery issue. Florida has a
           statute and ample supporting case law that recognize a
           broad testamentary exception to the attorney-client
           privilege. Pennsylvania, on the other hand, has no statutory
           authority that provides a testamentary exception to the
           attorney-client privilege. Further, there is no Pennsylvania
           appellate authority addressing the issue. A handful of
           Pennsylvania Court of Common Pleas decisions have
           discussed a limited testamentary exception, but these
           decisions have been much more limited than the broad
           Florida rule, which eliminates all of the attorney-client
           protections in a trust dispute. Based on the above analysis,
           it appears that there are significant differences between the
           laws of Pennsylvania and Florida regarding this discovery
           issue.

           The second step of the inquiry is that, if a true conflict exists,
           courts must conduct an “interest analysis” to determine
           which state has the greater interest in the outcome of the
           dispute. In making this determination, the court must



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       identify the relevant contacts that each state has with the
       instant dispute.

       Here, it appears that Florida is the state with the largest
       interest in the outcome of the underlying litigation. Florida
       is where the underlying litigation is pending; Florida is
       where the Defendants in that litigation reside; Florida is the
       situs of the trusts at issue in the underlying litigation; and
       the Circuit Court in and for Osceola County, Florida probate
       division is where the ultimate outcome of the underlying
       case will be decided.

       Pennsylvania’s interest involves promoting confidential
       communications between a Pennsylvania client and a
       Pennsylvania attorney made for the purpose of obtaining
       legal advice in Pennsylvania concerning Pennsylvania law.

       On balance, we find that Florida is the state most intimately
       concerned with the outcome of the case. Accordingly,
       Florida law must control the disposition of the issue of
       whether [Appellant’s] files can be withheld on the basis of
       privilege.

       B. WHETHER [APPELLANT] MUST PRODUCE HER FULL
       AND COMPLETE ESTATE PLANNING FILE FOR
       DECEDENT TO [APPELLEE]?

       Florida has a statute that recognizes a broad testamentary
       exception to the attorney-client privilege. See F.S. §
       90.502(4)(b). … To allow any or all parties to invoke the
       lawyer-client privilege prevents the swift resolution of the
       conflict and frustrates the public policy of expeditiously
       distributing estates in accordance with the testator’s wishes.
       The overriding concern that a testator’s intent is effectuated
       and the estate is administered in accordance therewith
       supersedes the confidentiality otherwise afforded. Florida
       law presumes that the testator would wish to have…her
       intent known if the alternative might result in a wrongful
       disposition of [her] estate.

       The issues in this case include a claim for undue influence
       as to the last known testamentary documents purportedly
       executed by Decedent, after Decedent was moved to Florida
       by her great-niece. In order to establish standing to contest


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         the current will offered for probate, the plaintiffs have
         alleged that the prior estate planning documents drafted by
         [Appellant] provide that they are beneficiaries thereunder
         and pursuant to the doctrine of dependent relevant
         revocation, if the current estate planning documents were
         set aside based on undue influence or other reason, the
         prior documents would be revived as the law abhors
         intestacy. While [the] Plaintiffs seek the prior documents to
         establish their standing to contest Decedent’s last known
         Will and Trust, they also seek to have the testimony and file
         of [Appellant] to show Decedent’s longstanding intent to
         provide for them. The [P]laintiffs in the Florida litigation
         also believe that [Appellant’s] file will prove the factors
         which establish undue influence, such as the Defendant’s
         actions in cloistering [Decedent] from those she trusted.

         We find that [Appellant’s] estate planning file for Decedent
         must be provided to [Appellee] with some limitations. …

(Opinion in Support of Order Granting in part and Denying in part Appellant’s

Motion to Quash Subpoena/Motion for a Protective Order, filed 10/13/17, at

4-7; R.R. at 215a-218a) (most internal citations omitted).

      We agree a conflict exists between Florida and Pennsylvania law on this

privilege and approve of the trial court’s choice of law analysis. The primary

action is the estate case pending in Florida. Pennsylvania is not the forum

state for that litigation, and Florida has the principal interest in its resolution.

On the other hand, Pennsylvania has no interest in the outcome of the Florida

case and is involved due only to a subpoena derivative of the Florida case.

Thus, we cannot allow Pennsylvania indirectly to control the Florida estate

litigation and defer to Florida law, which has seen fit to adapt to the particular

circumstances at issue, by way of its testamentary exception to the

attorney/client privilege.


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        Consequently, under these circumstances, we conclude Florida is the

state with more significant contacts and greater concern for the primary and

principal litigation, so Florida law should also control the matter of attorney-

client privilege.   See Griffith, supra; Carbis Walker, supra.        Therefore,

Appellant’s claims merit no relief. Accordingly, we affirm.

        Order affirmed.

        Judge Ransom did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/18




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