J-S31026-16

                               2016 PA Super 260

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

            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: SHOGAN, OTT, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                   FILED NOVEMBER 22, 2016

      John M. Gregury and Barbara J. Robey (collectively, Appellants),

appeal from the judgment entered on August 17, 2015, following the trial

court’s entry of nonsuit in favor of Shirley M. Greguras (Shirley), the Estate

of Adolf Greguras, James T. Yingst (Yingst), and Guthrie, Nonemaker, Yingst

& Hart (GNYH) (collectively Appellees).      After careful consideration, we

vacate the judgment, reverse the order granting Appellees’ nonsuit, and

remain for proceedings consistent with this opinion.

      Appellants are the children of Adolf Greguras (Decedent).     Shirley is

the widow of Decedent1 and Appellants’ stepmother. Yingst, who prepared

Decedent’s March 2, 2000 will, is an attorney with the law firm of GNYH.


1
 Shirley was married to Decedent for approximately 35 years.        See N.T.,
3/16/2015-3/18/2015, at 395.


* Retired Senior Judge assigned to the Superior Court.
J-S31026-16


The underlying action stems from a dispute over the distribution of

Decedent’s assets. Specifically, “[Appellants] believe they are entitled to the

money held jointly by [Shirley and Decedent] and that [Shirley] and/or []

Yingst[2] committed some sort of fraud or breach of duty that has prevented

them from accessing those assets.” Trial Court Opinion Denying Appellants’

Motions for Post-trial Relief, 8/10/2015, at 3 (unnumbered). Appellants filed

a complaint alleging inter alia, fraud, breach of contract, and intentional

infliction of emotional distress.

      The procedural history was summarized by the trial court in earlier

opinions concerning motions for summary judgment filed by Appellees:3

           The Will provided for [Shirley] to receive[ half] of all
      [] Decedent’s property while the [Appellants] were each
      to receive one fourth] of all his property.2        [However,
      [Appellants] allege that Decedent had written an[d]

            2 At the time of Decedent’s death, he and
            [Shirley] held various financial accounts jointly
            between them and thus title passed to [Shirley]
            by operation of law. Also at [the] time of
            Decedent’s death, the marital residence of Decedent

2
  Appellants aver they enjoy third-party beneficiary status, which allow them
to initiate an action against Yingst. See Trial Court Opinion, 2/9/2011, 2
(addressing preliminary objections filed by Yingst and GNYH) (“Finally,
[Appellants] allege that they were the express, intended third-party
beneficiaries of any and all contractual relations between [Yingst and GNYH]
and [D]ecedent, and therefore, this confers standing to bring such claims.”).
3
  The trial court filed separate opinions denying the two separate summary
judgment motions filed by Shirley and Yingst/GNYH. These opinions contain
almost identical discussions of the factual and procedural history of this
case. We quote from the trial court’s opinion addressing Shirley’s summary
judgment motion. Additional facts set forth in the trial court’s opinion
addressing Yingst/GNYH’s summary judgment motion are bracketed.


                                     -2-
J-S31026-16


           and [Shirley] was owned ½ by Decedent and
           [Shirley] as tenants by the entireties and ¼ each by
           [Appellants] as joint tenants with the right of
           survivorship.

     oral communications to his children/[Appellants] and others as
     to his intentions and his understanding of his estate plan,
     including death bed assurances in the presence of [Appellee]
     Shirley and [Appellants. Appellants] allege that they were
     expressly or impliedly the beneficiary of the legal services
     agreement of Decedent and [] Yingst.]

            Following Decedent’s death, the real estate became the
     subject of a partition action between [Shirley] and the
     [Appellants], which ultimately culminated in the sale of the home
     and distribution of the proceeds among the parties.[4]
     Decedent’s personal effects and the couple’s household property
     remained in the marital residence as [Shirley] continued to live
     in the home for approximately nine (9) months following
     Decedent’s death. [Appellants] entered the marital residence
     segregating household items in a single room and eventually
     placing them in a locked P.O.D. storage container. Efforts to
     settle disagreements over the various items of personal property
     eventually broke down, and [Appellants] subsequently filed their
     complaint.

           [Appellants] initiated this action by praecipe for writ of
     summons on June 26, 2009, and their complaint was filed on
     September 28, 2009 after a praecipe for rule to file a complaint
     was served by GNYH. GNYH filed preliminary objections to the
     complaint and on May 26, 2010, the Honorable John W.
     Thompson, Jr. dismissed the Complaint without prejudice giving
     [Appellants] forty-five (45) days to file an amended complaint.
     On September 1, 2010, [Appellants] filed an amended
     complaint. The Amended Complaint contained various claims
     including: Count I-Equitable Claims - Constructive Trust, Probate
     and Accounting; Count II Fraud; Count III-Breach of Contract;

4
  Under the October 25, 1983 deed, Decedent and Shirley transferred the
real property, for consideration of One Dollar ($1.00), to themselves to hold
an undivided one-half (1/2) interest as tenants by the entireties, and to
Appellants Gregury and Robey to each hold an undivided one-fourth (1/4)
interest as joint tenants with a right of survivorship. Deed, 10/25/1983;
Appellants’ Exhibit 4.


                                    -3-
J-S31026-16


     Count IV-Professional Negligence; Count V-Intentional Infliction
     of Emotional Distress; and a request for attorney’s fees and
     punitive damages. However, only counts I, II, V, and the request
     for attorney’s fees and punitive damages were alleged against
     [Shirley]. [Counts II, III, IV, V, and the request for attorney’s
     fees and punitive damages were alleged against [Yingst and
     GNYH.]]

            Thereafter, GNYH filed preliminary objections to the
     Amended Complaint. On February 9, 2011, the Honorable John
     W. Thompson, Jr.[,] sustained in part and denied in part GNYH’s
     preliminary    objections    dismissing    Count   IV-Professional
     Negligence and dismissing attorney’s fees. The rest of the
     amended complaint claims were allowed to proceed. On March
     14, 2014, [Shirley] filed this motion for summary judgment with
     brief in support requesting oral argument. On April 30, 2014,
     [Appellants] filed a response in opposition with brief. On April
     24, 2014, [Shirley] listed this matter for one judge disposition[]
     which was assigned to the Honorable John W. Thompson, Jr. on
     May 1, 2014.

           [Shirley’s] motion for summary judgment will be denied[.]

Trial Court Opinion, 8/13/2014, at 1–3 (addressing summary judgment

motion filed by Shirley M. Greguras) (emphasis added, unnecessary

capitalization omitted); Trial Court Opinion, 8/13/2014, 1–3 (addressing

summary judgment motion filed by Yingst and GNYH).

     The case proceeded to a jury trial on March 16, 2015.5            At the

conclusion of Appellants’ case, [Appellees] moved for nonsuit which was




5
   The claims that proceeded to trial were: Count I-Equitable Claims -
Constructive Trust, Probate and Accounting; Count II-Fraud; Count III
Breach of Contract; Count V-Intentional Infliction of Emotional Distress; and
a request for punitive damages.



                                    -4-
J-S31026-16


granted by the trial court. Post-trial motions were denied and this timely-

filed appeal followed.6

       The gist of Appellants’ case, based upon the fact that Decedent’s

property was held in joint accounts that passed to Shirley outside the will, is

that “Yingst and/or [Shirley], negligently or fraudulently thwarted the

express intent of [Decedent] as stated in the will by either failing to

adequately advise [Decedent]; or by [Shirley] manipulating assets after the

will was drafted.”    Appellants’ Brief at 9 (italics in original).   Appellants

assert “their father could not possibly have intended they receive ‘1/4 of

nothing.’” Id. at 9–10.

       Appellants state the following issues for this Court’s consideration,

which we have re-ordered for ease of disposition:

    1. Did the trial court err in denying reconsideration of the in limine
       and trial exhibit orders as evidence of testamentary intent[?]

    2. Did the trial court err in denying reconsideration of the in limine
       and trial exhibit orders regarding severe emotional distress of []
       Gregury?

    3. Did the trial court err in allowing [Shirley] to waive attorney[-
       ]client privilege at trial after asserting it throughout discovery
       and pre-trial processes?

    4. Did the trial court err in granting [Appellees’] motion for nonsuit
       as to all counts and all defendants, where the motions merely
       sought to relitigate legal issues rejected in summary judgment?



6
 Appellants timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.



                                      -5-
J-S31026-16


Appellant’s Brief at 3 (suggested answers and unnecessary capitalization

omitted).

      We first examine Appellants’ argument that the trial judge, the

Honorable David Grine, erred in refusing to admit oral and written evidence

of Decedent’s testamentary intent and testimony and medical records of

Gregury, both of which had been precluded by a pre-trial order granting the

Appellees’ motions in limine. See Appellants’ Brief at 22, 32.

      When reviewing rulings on motion in limine, we apply the scope
      of review appropriate to the particular evidentiary matter. A
      motion in limine is a procedure for obtaining a ruling on the
      admissibility of evidence prior to or during trial, but before the
      evidence has been offered. In reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the
      trial court upon a showing that it abused its discretion or
      committed an error of law.

Rachlin v. Edmison, 813 A.2d 862, 869 (Pa. Super. 2002) (citations

omitted).

      Prior to trial, based upon Appellants’ Exhibit Chart provided to counsel

at the pre-trial conference, Shirley and Yingst/GNYH each filed a motion in

limine to preclude certain handwritten documents7 and oral testimony that

Appellees anticipated Appellants would seek to introduce at trial to show




7
   Appellants describe the handwritten documents as “documents which
identified [the] Decedent’s assets and one on which there was a handwritten
calculation of what half of those assets would be.” Appellants’ Brief at 10.
See also Appellants’ Appendix to Appellants’ Response in Opposition to
Motions for Summary Judgment, Nos. 28-30.



                                     -6-
J-S31026-16


Decedent’s testamentary intent. Appellees also sought to preclude medical

testimony and medical records of Gregury.

      The Honorable Stephen P. Linebaugh granted the Appellees’ motions in

limine, stating:

      [Appellants] are precluded from presenting any unauthenticated
      handwritten documents including but not limited to those
      handwritten documents listed in [Appellants’] Exhibit Chart at P8
      and P9 and in [Appellants’] appendix to their Motion for
      Summary Judgment at S28-S30. Such documents are hearsay
      and irrelevant to this matter.

      [Appellants] are precluded from presenting an[y] oral testimony
      related to testamentary intent of [] Decedent. Such testimony
      violates the parole [sic] evidence rule.

      [Appellants] are precluded from presenting any medical
      testimony including but not limited to medical testimony
      concerning emotional distress because [Appellants] have no
      expert.

Order Granting Motions in Limine, 3/6/2015.

      Judge Linebaugh reiterated these rulings in a separate order granting

Appellees’ objections to trial exhibits:

      [Appellants] are precluded from presenting the handwritten
      documents identified as P8-P9 as trial exhibits. We have already
      precluded the presentation of these documents in our Order
      granting the Omnibus Motions in Limine.

      …

      [Appellants] are precluded from presenting as trial exhibits any
      medical records, prescriptions, mental health evaluations,
      progress notes, and psychiatric evaluations, identified as P28-
      P50, because Appellants have no expert witness.

Order Granting Objections to [Appellants’] Trial Exhibits, 3/6/2015.



                                      -7-
J-S31026-16


      While the coordinate jurisdiction rule applied to Judge Linebaugh’s

pretrial orders,8 Appellants’ counsel, at trial, made a supplemental proffer of

authentication   evidence   for   the    handwritten   documents.   See   N.T.,

3/16/2015-3/18/2015, at 406-407. The trial court rejected the proffer.

      In denying post-trial motions, Judge Grine opined that the motions in

limine were properly granted:

      Prior to trial, President Judge Stephen P. Linebaugh ruled on
      several motions in limine. [The trial court] adhered to those
      rulings as they were not in error. First, [Appellants] were
      properly precluded from presenting unauthenticated handwritten
      documents as those documents constituted hearsay and were
      irrelevant to this matter. Second, [Appellants] were properly
      precluded from presenting oral testimony related to the
      testamentary intent of [] Decedent. Such testimony would
      violate the parole [sic] evidence rule. Third, [Appellants] were
      properly precluded from presenting medical testimony
      concerning emotional distress because [Appellants] had no
      expert to provide such testimony.

Trial Court Opinion, 8/10/2015, at 3 (unnumbered). We address the

preclusion of oral testimony, handwritten documents, and medical records,

sequentially.

      In this case, Decedent’s will provided:

8
  “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 Hospital, 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. “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.


                                        -8-
J-S31026-16



      SECOND: I give all of my property, real, personal and mixed, of
      whatsoever kind and wheresoever situate, as follows:

      A. One-half (1/2) to my wife, Shirley M. Greguras. Should my
      said wife predecease me, her share of my said property shall be
      distributed equally to my two (2) children, Barbara J. Robey and
      John M. Gregury, and my wife’s daughter, Sharon L. Beavers.

      B. One-fourth (1/4) to my daughter, Barbara J. Robey. Should
      my said daughter predecease me, her share of my said property
      shall be distributed equally to my son, John M. Gregury, and my
      wife’s daughter, Sharon L. Beavers.

      C. One-fourth (1/4) to my    son, John M. Gregury. Should my said
      son predecease me, his       share of my said property shall be
      distributed equally to my    daughter, Barbara J. Robey, and my
      wife’s daughter, Sharon L.   Beavers.

Will of Adolf Greguras, 3/2/2000, at 1.

      Regarding the precluded oral testimony of Decedent’s testamentary

intent, Appellants argue the evidence was admissible pursuant to the parol

evidence rule as set forth in Herr Estate, 161 A.2d 32 (Pa. 1960):

      A Court interpreting a will or a contract can always consider the
      surrounding circumstances in order to ascertain the intention
      and the meaning of the parties. Moreover, where an ambiguity
      exists, parol evidence is admissible to explain or clarify or
      resolve the ambiguity, irrespective of whether the ambiguity is
      created by the language of the instrument or by extrinsic or
      collateral circumstances.

Id. at 34 (citations omitted). See Appellants’ Brief at 23. Relying on the

above quoted legal principles, Appellants contend that,

      [w]hile the will is clear and supports the position of the
      [Appellants], ambiguity was created by the fact that
      notwithstanding the clear terms of the will, [Appellees] claimed
      all valuable property was held by entireties at the time of death



                                      -9-
J-S31026-16


      and by operation of law the assets admitted to have been
      intended to pass through the will did not pass through it.

Appellants’ Brief, at 23–24.

      “An ambiguity in a will must be found without reliance on extrinsic

evidence; extrinsic evidence is admissible only to resolve, not create, an

ambiguity.” In re Estate of Harper, 975 A.2d 1155, 1162 (Pa. Super.

2009) (citation omitted). “There are two types of ambiguity: patent and

latent.” In re Estate of Schultheis, 747 A.2d 918, 923 (Pa. Super. 2000)

(citation omitted). Appellants’ argument suggests a latent ambiguity, which

this Court has described as follows:

      A latent ambiguity arises from collateral facts which make the
      meaning of a written document uncertain, although the language
      appears clear on the face of the document. To determine
      whether there is an ambiguity, it is proper for a court to hear
      evidence from both parties and then decide whether there are
      objective indications that the terms of the document are subject
      to differing meanings.

      Where a latent ambiguity exists we have repeatedly held that
      parol evidence is admissible to explain or clarify the ambiguity,
      irrespective of whether the latent ambiguity is created by the
      language of the will or by extrinsic or collateral circumstances.
      Where a latent ambiguity exists, the court may resort to parol
      evidence (such as testimony of the scrivener) to determine []
      decedent’s true intent. One limitation to the foregoing is
      that extrinsic evidence of surrounding facts must only
      relate to the meaning of ambiguous words of the will. It
      cannot be received as evidence of the testator’s intention
      independent of the written words employed.

Id. (citations, quotations and brackets omitted) (emphasis added).

      Here, Appellants concede that Decedent’s will “is clear.”   Appellants’

Brief at 23. In fact, Decedent’s will specified that Appellants would each


                                       - 10 -
J-S31026-16


receive a quarter share of his property.      However, Appellants believe an

ambiguity exists because Decedent’s assets did not pass through the will.

We disagree.

         Decedent’s joint accounts with Shirley had a statutory presumption of

a right of survivorship under the Multi-Party Account Act (MPAA),9 and there

is no statutory provision giving a will primacy over the right of survivorship

presumed by the MPAA. In re Novosielski, 992 A.2d. 89, 101 (Pa. 2010).

The Novosielski Court stated: “One who knowledgeably creates a joint

account with another arguably does so with the present intent to employ the

account’s survivorship characteristic in substitution for a testamentary

device.” Id. at 102 (citation omitted).

         Here, Appellants do not challenge Shirley’s entitlement under the

MPAA.10      Rather, Appellants assert that Decedent did not intend for his

assets to pass outside of the will, and that the oral and handwritten

documents would show that Decedent’s intent was for all accounts to pass

under the will and that his intent was frustrated by Appellees.     However,

Appellants cannot rely on extrinsic evidence to create an ambiguity in the

Will. Harper, supra; Schultheis, supra. Here, the terms of the will were

clear and unambiguous and, therefore, we agree with the trial court that oral


9
     20 Pa.C.S. §§ 6301-6306.

10
  The presumption of the right of survivorship can be rebutted by clear and
convincing evidence of a different intent. In re Novosielski, 992 A.2d at
106–107.


                                     - 11 -
J-S31026-16


testimony about Decedent’s testamentary intent was not admissible under

the parol evidence rule.

      Moreover, regarding the proffered handwritten notes, we find no error

in Judge Linebaugh’s determination, which was adhered to by the trial court,

that these notes were inadmissible. 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). While the hearsay rule is subject to exceptions,

none appears applicable here.      The documents at issue were unsigned,

undated, and without a clear purpose.         Nevertheless, Appellants were

offering these handwritten documents as proof of Decedent’s testamentary

intent, that is, the truth of the matter asserted.     As such, they clearly

constituted hearsay.

      There were other problems with the documents. Although Appellants

proffered additional testimony to identify the handwriting and stationery as

Decedent’s for authentication purposes, without evidence to show when or

why the documents were written, the relevancy of the documents is

impossible to determine.   See Pa.R.E. 401 (“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.”); Pa.R.E. 402 (“All relevant evidence is admissible, except as

otherwise provided by law. Evidence that is not relevant is not admissible.”).



                                    - 12 -
J-S31026-16


      Accordingly, based on our review, we conclude preclusion of oral

testimony and the handwritten documents of Decedent’s testamentary intent

was proper, and Appellants’ first argument presents no basis upon which to

grant relief.

      Nor do we find merit to Appellants’ contention that the trial court erred

in precluding medical evidence of Gregury’s emotional distress for lack of an

expert opinion.     As mentioned above, Judge Linebaugh granted the

Appellees’ motions in limine, and Judge Grine agreed that “[Appellants] were

properly precluded from presenting medical testimony concerning emotional

distress because [Appellants] had no expert to provide such testimony.” Trial

Court Opinion, 8/10/2015, at 3 (unnumbered).

      The Pennsylvania Supreme Court has explained, “Given the advanced

state of medical science, it is unwise and unnecessary to permit recovery to

be predicated on an inference based on the defendant’s ‘outrageousness’

without expert medical confirmation that the plaintiff actually suffered

the claimed distress.” Kazatsky v. King David Memorial Park, 527 A.2d

988, 995 (Pa. 1987) (emphasis added). Furthermore, this Court has held the

requirement of expert testimony relates, “both as to the fact of the distress

itself and as to the causation element.” Wecht v. PG Publ. Co, 725 A.2d

788, 791 (Pa. Super. 1999) (emphasis added). While Appellants insist

Gregury’s medical records are sufficient “medical evidence” that “showed []

Gregury suffered extreme emotional distress related to the conduct at



                                    - 13 -
J-S31026-16


issue,” we reject that argument in light of the above-cited authority.

Consequently, Plaintiffs’ second claim fails to warrant relief.11

      Next, we address Appellants issue that the trial court erred in allowing

Shirley to waive her attorney-client privilege at trial after asserting it

throughout discovery and pre-trial processes. Specifically, Appellants argue

that the effect of Shirley’ waiver of her attorney-client privilege was

“fundamental unfairness” and “undue surprise.” Appellants’ Brief at 29, 30.

Appellants contend allowing Shirley to waive privilege left them

      with a “lady or the tiger” dilemma: opening the door and asking
      questions for which the answer was not know[n;] or having all
      witnesses including the expert commit to opinions on what
      happened (was it Yingst or [Shirley]), with [Appellees] free to
      concoct any claim of previously undisclosed privileged
      discussions, free of any risk of rebuttal given [Yingst’s]
      convenient and suspicious failure to preserve the written notes


11
  Furthermore, based on the facts as presented, Appellants were in no way
able to sustain a claim for intentional infliction of emotional distress.
Irrespective of whether Appellants proffered an expert, Appellants have
failed to set forth a cognizable claim for which relief could be sought. See
Swisher v. Pitz, 868 A.2d 1228, 1230–31 (Pa. Super. 2005) (citations and
quotations removed) (“Outrageous or extreme conduct [which must be
proven to prevail on an intentional infliction of emotional distress claim] has
been defined by the appellate courts of this Commonwealth as conduct that
is so outrageous in character, so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in civilized society. [I]t has not been enough that the defendant
has acted with intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct has been
characterized by ‘malice,’ or a degree of aggravation that would entitle the
plaintiff to punitive damages for another tort.”). See also Hoy v.
Angelone, 720 A.2d 745, 754 (Pa. Super. 1998) (“Cases which have found
a sufficient basis for a cause of action of intentional infliction of emotional
distress have had presented only the most egregious conduct.”).



                                     - 14 -
J-S31026-16


        which Yingst and [Shirley] admit were taken in their meeting
        with [Decedent].

Appellant’s Brief at 31. At trial, after Appellees’ counsel’s opening statement

had been presented, Appellants’ counsel requested a mistrial or additional

discovery based on the Appellees’ counsel’s indication that Shirley was

waiving her attorney client privilege at trial.12     The court, after hearing

argument outside the presence of the jury, ruled: “Motion for mistrial denied

and the [trial c]ourt is satisfied that the previous instructions regarding

statements of counsel not being evidence cover the problem.” N.T.,

3/16/2015-3/18/2015, at 66–67.

        In its opinion denying Appellants’ post-trial motions, the trial court

further explained:

        [Appellants] had requested a mistrial or time to conduct
        additional discovery because [Shirley] waived her attorney-client
        privilege. [Appellants] would argue that since she only waived
        the privilege before trial that they were so prejudiced as to
        warrant a mistrial or, alternatively, to require additional
        discovery. This case was commenced in 2009, and the [p]arties
        conducted discovery for six years, and that discovery was
        exhaustive. The privilege was [Shirley’s] to invoke or waive at
        trial. She chose to waive her privilege. This was not improper
        and the [trial c]ourt correctly denied the request for mistrial or,
        in the alternative, additional discovery.

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

        “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

12
     See N.T., 3/16/2015–3/18/2015, at 62–64.


                                      - 15 -
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an abuse of discretion.” Bugosh v. Allen Refractories Co., 932 A.2d 901,

914-15 (Pa. Super. 2007) (citation omitted). “As abuse of discretion is the

standard of review in this matter, [it is this Court’s] function to determine

whether the trial court’s decision to exclude [] testimony [] constituted

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). Such decisions “are within the sound discretion of

the trial court. We may reverse only if we find an abuse of discretion or error

of law.”   Cimino v. Valley Family Med., 912 A.2d 851, 853 (Pa. Super.

2006) (citations omitted).

      This Court is cognizant of the dearth of case law in this Commonwealth

regarding this particular matter and therefore, it appears to be an issue of

first impression.   In disagreeing with the trial court and therefore finding

Shirley’s late waiver of her attorney-client privilege to be both prejudicial

and fundamentally unfair, we are guided by the decisions of our sister states

which have encountered this very issue.

      In Seattle Nw. Sec. Corp. v. SDG Holding Co., 812 P.2d 488

(Wash. App. 1991) the court held

      that when a party is asserting the attorney-client privilege, that
      party must make an election prior to any deadline for completion
      of discovery as to whether or not the privilege will be voluntarily
      waived at trial and, if the privilege is to be waived, provide to
      opposing counsel a statement of the subject matter of the
      testimony. If [a party] wishes to preserve the privilege during
      discovery, it cannot have it both ways.



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Id. at 499. See also Int'l Tel. & Tel. Corp. v. United Tel. Co. of Florida,

60 F.R.D. 177, 186 (M.D. Fla. 1973) (“Fundamental fairness and justice

requires [sic] that if the defendant intends to waive the privilege at trial by

the introduction of evidence within that privilege, then the defendant will be

required to allow discovery with regard to matters material to that

testimony.”); Domako v. Rowe, 475 N.W.2d 30, 33 (Mich. 1991) ( “[I]t is

patently unfair for a party to assert a privilege during pretrial proceedings,

frustrate rightful discovery by the other party, and then voluntarily waive

that privilege at trial, thereby catching the opposing party unprepared,

surprised, and at an extreme disadvantage. Thus the rule requires that a

party choose between the existing privilege and the desired testimony. The

party may not have both.”).

      In line with the holdings of our sister states, we find a party may not

waive privilege at trial which was previously asserted during the discovery

and pre-trial process. In concluding as such, we agree with Appellants that

Shirley’s late waiver of privilege essentially amounts to a trial by ambush,

disallowing   potentially   relevant    discovery   and   allowing   undisclosed

information to be presented at trial in direct contradiction to our long held

standard that privilege may not be used as both a sword and a shield. 13


13
   Additionally, we wholly disagree with Shirley’s argument that Appellants
should have sought “a motion in limine prior to trial to preclude introduction
of any previously privileged information.” Shirley’s Brief at 18. We find it
counter to both our well-established rules and judicial economy that parties
be forced to file motions to preclude testimony and information that has


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Denying Appellants’ request for a mistrial or additional discovery created a

situation that made it impossible for Appellants to cross-examine Appellees.

As aptly stated by Appellants’, Shirley late waiver “had a particularly

deleterious effect on the ability of [Appellants] to present expert evidence,

as the switch allowed essentially blind cross-examination on ‘hypotheticals’

which could be converted into non-hypothetical testimony in [Appellees]

case.” Appellants’ Brief at 7.

      Consequently, we conclude the trial court’s allowance of Shirley’s

waiver at trial was an abuse of discretion. Furthermore, we find that under

these circumstances, this allowance cannot be merely harmless error. See

Rettger v. UPMC Shadyside, 991 A.2d 915, 923–24 (Pa. Super. 2010)

(quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa.

2000) (“Consideration of all new trial claims is grounded firmly in the

harmless error doctrine ‘[which] underlies every decision to grant or deny a

new trial. A new trial is not warranted merely because some irregularity

occurred during the trial or another trial judge would have ruled differently;

the moving party must demonstrate to the trial court that he or she has

suffered prejudice from the mistake.’”).

      In conclusion, we agree that the trial court properly disallowed

evidence of the oral testimony, handwritten documents and evidence about

Gregury’s purported severe emotional distress. Further, we find the trial

previously been asserted as privileged or non-discoverable on the chance a
party decides to renege at trial and introduce such information.


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court committed reversible error by allowing Shirley to waive privilege after

previously asserting the same during discovery. For this reason, we vacate

the judgment, reverse the trial court’s entry of non-suit, and remand for the

allowance of additional discovery and a new trial.14

      Judgment vacated. Order reversed.         Case remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.

      Judge Shogan joins.

      Judge Ott files a dissenting opinion.




14
  Because we remand Appellants’ case for a new trial, their remaining issue,
regarding the trial court’s granting of Appellees’ motion for nonsuit is moot.
Nonetheless, we note that the denial of a motion for summary judgment
does not preclude a trial court from subsequently granting a motion for
nonsuit.

      In [Parker v. Freilich, 803 A.2d 738, 745 (Pa.Super.2002)],
      this Court held that a trial court is permitted to consider an
      issue in a motion for compulsory nonsuit that had been
      previously addressed in denying a motion for summary
      judgment. We explained that a motion for summary judgment
      and a motion for a compulsory nonsuit “are not motions of the
      same kind[.]” This is because the plaintiff's “presentation of her
      case in chief constitutes an intervening change in the facts that
      warranted a second consideration of the issue[.]” Therefore, as
      Appellant's argument is foreclosed by Parker, we conclude the
      trial court did not violate the law of the case doctrine in
      considering and granting Appellee’s motion for a compulsory
      nonsuit.

Neidert v. Charlie, 143 A.3d 384, 391 (Pa. Super. 2016)(emphasis added,
citations omitted).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/22/2016




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