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, J., OTT, J., and STRASSBURGER, J.*

DISSENTING OPINION BY OTT, J.:                   FILED NOVEMBER 22, 2016

        Because I believe there was no reversible error and the nonsuit was

properly granted, I very respectfully dissent.

        This action was brought by John M. Gregury and Barbara J. Robey

(collectively Appellants) against Shirley M. Greguras (Shirley), the Estate of

Adolph Greguras, James T. Yingst (Yingst), and Guthrie, Nonemaker, Yingst,

and Hart (GNYH) (collectively Appellees). Shirley is Appellants’ stepmother


____________________________________________


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


and was 89 years of age in 2014.1 Yingst prepared wills for Shirley and her

husband, Adolph Greguras (“the Decedent”) in 2000. The Decedent died in

2007. At the heart of the dispute in this case are two joint accounts, which

were owned by Shirley and Decedent and opened in 2004, that passed

outside the Decedent’s will.

        The trial court, in its opinion in support of the order denying post-trial

motions, distilled the facts giving rise to the underlying action, as follows:

        A husband [the Decedent] and wife [Shirley] go to husband’s
        attorney [Yingst] and husband asks attorney to draft wills for
        himself and his wife. His will states that his estate will go to his
        wife with a residuary clause for his children. [The Decedent’s
        will is executed on March 2, 2000.] Upon his death [in 2007] the
        majority of his wealth and assets are held in joint accounts with
        his wife. Some remaining personal property of his may be
        distributed to [Appellants] as part of the estate, but they have
        no claim to the money held in the accounts. In fact, [Appellants]
        entered the residence of Shirley [] and portioned out the
        personal property to which they felt they were entitled and
        sequestered it away from [Shirley]. [Appellants] believe they are
        entitled to the money held jointly by [Shirley] and their
        deceased father and that [Shirley] and/or Attorney Yingst
        committed some sort of fraud or breach of duty that has
        prevented them from accessing those assets. ….

Trial   Court   Opinion     Denying     Plaintiffs’   Motions   for   Post-trial   Relief,

8/10/2015, at 2–3 (unnumbered).

        I begin with the third issue, whether the trial court erred in denying

Appellants’ motion for mistrial and/or curative instruction when Shirley

____________________________________________


1
 See Trial Court Opinion, 8/13/2014, at 1 (addressing summary judgment
motion filed by Shirley).



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J-S31026-16



waived her attorney-client privilege at trial after asserting it throughout

discovery and pre-trial processes.             The Majority found merit in this

argument, and concluded that a new trial was warranted in this case. For

the reasons set forth below, I disagree.

         As already stated by the Majority, we review the trial court’s grant or

refusal of a mistrial for an abuse of discretion.                Bugosh v. Allen

Refractories Co., 932 A.2d 901, 914-915 (Pa. Super. 2007). Furthermore,

relevant to this issue, the attorney-client privilege is codified at Section 5928

of the Judicial Code, and 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 same, unless in
         either case this privilege is waived upon trial by the client.

42 Pa.C.S. § 5928.

         By way of background to this issue, it is important to note that the

issue of attorney-client privilege arose during discovery in two contexts.

First,    Yingst   asserted     the    attorney-client   privilege   regarding   any

communications with Shirley and the Decedent.2              Second, Yingst did not

assert the attorney-client privilege regarding communications with Shirley



____________________________________________


2
  See N.T., 3/16/2015–3/18/2015, at 84, 121–122; Appellants’ Trial Brief,
3/10/2015, at 8; Appellants’ Brief in Opposition to the Motions for Summary
Judgment, 5/1/2014, at 8.




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J-S31026-16


when her daughter was also present.3              With regard to these latter

communications, which occurred after the Decedent’s death, Appellants’

counsel argued to the court prior to trial that there was “irregular assertions

of the attorney-client privilege where Yingst “selectively declined to disclose

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

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

selective attorney-client communications disclosures.”4

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

attorney-client privilege, as follows:

        [Yingst] claims to have taken notes during the first meeting, and
        [Shirley] testified that she remembered him taking notes.

        They produced what he said was his entire file without any
        assertion of attorney/client privileges to any document. No such
        notes appear in the file. He had no informational materials that
        he gave to his client.

                                           ****

        ... Defendant Yingst claimed that he had gave 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.

____________________________________________


3
    See N.T., 3/16/2015–3/18/2015, at 85.
4
   Appellants’ Trial Brief, 3/10/2015, at 12 (italics omitted), 14; Appellants’
Brief in Opposition to the Motions for Summary Judgment, 5/1/2014, at 12
(italics omitted), 14.




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J-S31026-16


      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 [the 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., 3/16/2015-3/18/2015, at 36–37. Thereafter, counsel for Yingst/GNYH,

in his opening, indicated that Shirley would waive her previously asserted

attorney-client privilege:

      … 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 to their
      children, plain and simple.

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

Id. at 51–52.

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

the jury had been excused for lunch, appellants’ counsel asked for a mistrial,

curative instruction, and additional discovery, arguing:

      I hate to do this, Your Honor, but I have two things: One, I
      believe that the content of the opening argument of the defense
      counsel … constitutes grounds for a mistrial. I mean it went that
      far.


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J-S31026-16




     And it also raises, if not that, it raises an issue which I had
     included in the pretrial brief regarding the inconsistent assertion
     of attorney/client privilege and the insertion at trial of
     information alleged to have been communicated in an
     attorney/client communication to which the Defendant Yingst did
     not testify in his deposition and regarding which he refused to
     testify at his deposition and regarding which he’s now through
     counsel told the jury information that is absolutely inconsistent
     with the assertion of attorney/client privilege he previously
     made.

     And the specific thing that I do recall, and if necessary I would
     have to go through the notes, but the specific thing was that he
     had explained the types of property and that [the Decedent]
     knew the different types of property that he had and didn’t have.

     And not only is that inconsistent – I would respectfully submit,
     Your Honor, that if you were to give a curative instruction
     indicating that any statements made in opening argument
     regarding what Mr. Yingst did or did not say to his client in
     particular, they should recall the prior instruction you gave about
     not argument, but I would ask that the Court give an instruction
     to counsel at this time that if their witness asserted
     attorney/client privilege during a deposition, that witness is not
     permitted at trial to inject matters that they declined to testify to
     during their deposition.

     It can’t -- And they raised it inconsistently. I pointed it out in the
     summary judgment brief, I pointed it out in the trial brief, and I
     believe those inconsistencies allow me to make credibility claims
     to the jury, but I don’t think they can cure their defect at trial by
     suddenly sandbagging me with additional disclosures that he
     refused to make at the time of his deposition. Thank you.

Id. at 62–64.

     In response, counsel for Yingst/GNYH argued:

     Briefly, if I may respond, Your Honor, clearly what was said in
     argument does not constitute grounds for a mistrial. It’s not
     evidence. It’s argument.



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J-S31026-16


     But with respect to [appellants’ counsel’s] now angst about
     attorney/client privilege, he knew of the assertion of the
     privilege during the depositions. He could have filed a motion in
     limine as we did to preclude certain evidence. He failed to do so.

     The fact is at the deposition the attorney/client privilege had not
     been waived. Subsequent conversations with Shirley, who holds
     the privilege, that privilege has been waived and the testimony
     is going to come in.

     The fact that [appellants’ counsel’s] failed to do any type of
     pretrial filings, the fact that he didn’t file any pretrial motions
     seeking a ruling on that or an assertion of that in any way, you
     know, to raise it now is absurd.

     [Shirley] is here. She will tell you the privilege has been waived.
     He may be unhappy with it, but it’s his own fault. He didn’t do
     anything preemptively to try to get a ruling on that.

Id. at 64–65. The court then asked Shirley’s counsel his position, and he

stated, “My client is prepared to waive that privilege.”    Id. at 65.     The

discussion continued:

     [COUNSEL FOR APPELLANTS]: Your Honor, I will note that not
     only did they not inform me prior to trial that they were going to
     change their position regarding waiver, but they had previously
     argued when I had raised the argument that there had been a
     waiver because she had testified to communications, they
     argued that she could not waive the privilege of [the Decedent].
     That was their argument.

     And, Your Honor, I can’t be expected to file a motion in limine
     regarding attorney/client privilege that has been asserted when
     they don’t tell me that they’ve changed their mind about
     attorney/client privilege prior to trial, and I would respectfully
     submit that the very least, at the very least trial should be
     adjourned and I should be permitted to depose both Defendants
     now that they want to waive attorney/client privilege because
     trial is not supposed to be by ambush.




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J-S31026-16


      And had they informed me at any time prior to opening
      argument, I know Your Honor would have no doubt that I would
      have requested that examination.

      [COUNSEL FOR YINGST/GNYH]: Your Honor, the objections were
      on the record. At no time did [Appellants’ counsel] ever file a
      motion to overrule the objections, which is the typical pretrial
      practice leading into trial, nor did he file a motion in limine.

      You know, he is obviously scrambling for a reason to seek an
      adjournment here or a discontinuance of today’s or this week’s
      proceedings for reasons I don’t understand, but there’s
      absolutely no basis for mistrial and no basis for [Appellants’
      counsel’s] objections.

      [COUNSEL FOR APPELLANTS]: If I may, I was – I 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.
      That was our position.

      And because they had no indication and persistently argued that
      they were asserting the privilege and that the privilege was not
      being waived, this is an unfair surprise.

Id. at 65–66.

      Immediately thereafter, the trial court ruled:

      All right. Motion for mistrial denied and the Court is satisfied that
      the previous instructions regarding statements of counsel not
      being evidence covers the problem. All right .… Thank you.

Id. at 66-67.

      Here, it is clear that appellants’ counsel was aware that there had

been assertion, non-assertion, and “irregular” assertion of attorney-client

privilege in this case prior to trial.    Additionally, appellants’ counsel’s trial

tactic was to “bind the parties to the testimony they gave during the




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J-S31026-16


depositions.”5 Appellants’ counsel knew the privilege could be “waived upon

trial by the client.” 42 Pa.C.S. § 5928.

        In light of the pre-trial issues concerning Shirley’s attorney-client

privilege, counsel had the ability to either contest the assertion of the

privilege by Shirley or file a motion in limine to preclude introduction of any

previously privileged information. He did not do so. This failure negates his

claim he was “sandbagg[ed].”6

        Therefore, I disagree with the Majority that Appellants’ counsel was

“ambush[ed]”7 when Shirley waived her attorney-client privilege at trial. In

my view, in this case, counsel’s failure to obtain a ruling from the trial court

prior to trial cannot create “unfair surprise.”8 Accordingly, I would find no

abuse      of    discretion   by   the   trial   court’s   denial   of   the   request   for

mistrial/curative instruction.

        With regard to a motion for nonsuit, our standard of review is well-

settled:

        [T]he trial court, on the oral motion of a party, may enter a
        nonsuit if the plaintiff has failed to establish a right to relief.
        Pa.R.C.P. 230.1, 42 Pa.C.S.A. In evaluating the trial court’s
        grant of a nonsuit, “we must view the evidence adduced on
____________________________________________


5
    N.T., 3/16/2015–3/18/2015, at 66.
6
    Id. at 64.
7
    Majority Opinion, at 17.
8
    N.T., 3/16/2015–3/18/2015, at 66.



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J-S31026-16


     behalf of the [plaintiff] as true, reading it in the light most
     favorable to [him]; giving [him] the benefit of every reasonable
     inference that a jury might derive from the evidence and
     resolving all doubts, if any, in [his] favor.” Sinclair by Sinclair
     v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993).
     Accord Taliferro v. Johns-Manville Corp., 421 Pa. Super.
     204, 208, 617 A.2d 796, 799 (1992). Additionally, a compulsory
     nonsuit may be entered only in cases where it is clear that the
     plaintiff has not established a cause of action.... When so
     viewed, a nonsuit is properly entered if the plaintiff has not
     established a cause of action.... Taliferro[], 421 Pa. Super. at
     208, 617 A.2d at 799. With respect to the trial court's
     evidentiary rulings, “[q]uestions concerning the admission and
     exclusion of evidence are within the sound discretion of the trial
     court and will not be reversed on appeal absent an abuse of
     discretion. The basic requisite for the admissibility of any
     evidence in a case is that it be competent and relevant.” Moran
     v. G. & W.H. Corson, Inc., 402 Pa. Super. 101, 125, 586 A.2d
     416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860
     (1992).

In re Estate of Boardman, 80 A.3d 820, 822 (Pa. Super. 2013).

     The trial court, in its opinion, explained:

     Finding that Plaintiffs had not met their burden to establish by
     any sufficient evidence the elements of the claims alleged in
     their Complaint, the Court entered non-suit on March 18, 2015.

                                     ****

     Plaintiffs believe they are entitled to the money held jointly by
     Defendant [Shirley] Greguras and/or Attorney Yingst committed
     some sort of fraud or breach of duty that prevented them from
     accessing those assets. This belief is strongly, but incorrectly
     held.

                                     ****

     The law is clear. The Pennsylvania Multiple-Party Act (MPAA)
     provides that “[a]ny sum remaining on deposit at the death of a
     party to an account belongs to the surviving party or parties as
     against the estate of the decedent unless there is clear and
     convincing evidence of a intent at the time the account was

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J-S31026-16


        created.” 20 Pa.C.S.A § 6304. In addition, the MPAA states that
        “[a] right of survivorship arising from the express terms of an or
        under this section, or a beneficiary designation in a trust account
        cannot be changed by will.” Id. The MPAA is clearly applicable in
        this case. Only clear and convincing evidence of fraud could
        overcome the application of the MPAA and, as the record clearly
        shows, Plaintiffs produced no evidence of fraud at trial. There
        was a written, unambiguous will. Plaintiffs repeated attempts to
        introduce evidence of testamentary intent were inappropriate
        and, further, would not have been sufficient to establish a claim
        of fraud in any case.

        There was also no evidence that could sustain the claim for
        intentional infliction of emotional distress. The Court informed
        Plaintiffs’ counsel multiple times that expert medical testimony
        was necessary to maintain such a claim.           Wecht v. PG
        Publishing, 725 A.2d 788 (Pa. 788 (Pa. Super. 1999); McCann
        v. Amy Joy Donut Shops, [472] A.2d 1149, 1151 (1984);
        Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988
        (Pa. 1987). It has further been held that medical records are
        not sufficient for causation and that medical expert reports are
        necessary. Hoffman v. Brandywine Hosp., 661 A.2d 397 (Pa.
        Super. 1995).

        Finally, the claim that Defendant [Shirley] Greguras failed to
        properly administer her late husband’s estate was without merit
        as she was under no duty to so administer his estate.[9] Neither
        Defendant [Shirley] Greguras or Attorney Yingst and his firm
        acted in any outrageous manner and the punitive damages claim
        was also properly non-suited.

Trial   Court   Opinion     Denying     Plaintiffs’   Motions   for   Post-trial   Relief,

8/10/2015, at 1–5 (unnumbered).                The record supports the trial court’s

analysis.
____________________________________________


9
  Shirley was the named executrix of the Decedent’s will, dated March 2,
2000. However, as the Decedent’s assets were jointly held with Shirley and
did not pass under the will, Shirley had no obligation to probate the will
when he died in 2007.




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J-S31026-16


       Here, regardless of whether Yingst advised Shirley and the Decedent

or did not advise them in 2000 that placing assets in joint names would

defeat the provisions of the Decedent’s will, there was no evidence of the

Decedent’s intent with respect to the disputed assets that were placed in
                                                           10
jointly titled accounts in 2004, some four years later.         The trial court’s

analysis of the MPAA is correct; the joint accounts were the property of

Shirley upon the Decedent’s death, and I agree that there was no evidence

of fraud presented at trial. Furthermore, I agree with the trial court and the

Majority that the claim of intentional infliction of emotional distress fails for

lack of an expert report. Additionally, Appellants’ evidence provided no basis

for punitive damages.

       Accordingly, I would affirm the judgment entered upon the entry of

nonsuit in favor of Appellees. Therefore, I dissent.




____________________________________________


10
   Appellants’ evidence showed the Decedent and Shirley had a joint
checking account that was opened in 1976, and two joint accounts
(certificates of deposit), titled in the names of the Decedent and Shirley, that
were opened in 2004. Date of death balances for these accounts were
$113,423.26, $111,466.79, and $111,466.79, respectively. See N.T.,
3/16/2015–3/18/2015, at 78; Plaintiffs’ Exhibit 7.



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