Gregury v. Greguras

196 A.3d 619

John M. GREGURY and Barbara J. Robey, Appellants

v.Shirley M. GREGURAS and Estate of Adolf Greguras, and James T. Yingst and Guthrie, Nonemaker, Yingst & Hart

No. 1467 MDA 2015

Superior Court of Pennsylvania.

Argued September 13, 2017

Filed September 20, 2018

Andrew W. Barbin, Mechanicsburg, for appellants.

Kimberly A. Boyer-Cohen, Philadelphia, for Yingst and Guthrie, Nonemaker, and Yingst & Hart, appellees.

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

OPINION BY BOWES, J.:

Appellants John M. Gregury and Barbara J. Robey appeal from the August 17, 2015 judgment entered after the trial court granted a nonsuit in favor of Appellees Shirley M. Greguras ("Shirley"), individually and as Executrix of the Estate of Adolf Greguras ("Decedent"), James T. Yingst, Esquire, and Guthrie, Nonemaker, Yingst & Hart ("Law Firm"). At issue herein is a question of first impression regarding the timing of the waiver of the attorney-client privilege. After thorough review, we reverse the order granting a nonsuit, and remand for further proceedings consistent with this opinion.

Decedent died on May 27, 2007. He was survived by his second wife of thirty-five years, Shirley, and two adult children from his first marriage, Appellants John Gregury and Barbara Robey. He also had a stepdaughter, Sharon Beavers, Shirley's daughter from a prior marriage.

Decedent's Will dated March 2, 2000, which was prepared by Attorney Yingst of the Appellee Law Firm, was admitted to probate. By its terms, Shirley was designated Executrix of Decedent's estate. Decedent's Will provided in pertinent part:

SECOND: I give all of my property, real, personal and mixed, of whatsoever kind and wherever 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 Adolph Greguras ("Will"), 3/2/00, at 1.

As of Decedent's death, Decedent and Shirley had $330,000 in jointly-held accounts, consisting of a joint checking account with a balance of $113,423.26, and two jointly-held certificates of deposit opened in 2004, each with a balance of $111,466.79. See Plaintiffs' Exhibit 7; N.T. Jury Trial, 3/16-18/15, at 78. Other estate assets include two jointly-held certificates of deposit at M & T Bank, with values at Decedent's death of $14,747.53 and $19,352.98. See Plaintiffs' Exhibit 8. Based on the Pennsylvania Multiple-Party Accounts Act ("MPAA"), sums remaining in joint accounts upon death of a party to the account are presumed to belong to the survivor, unless there is clear and convincing evidence of a different intent at the time the account is created. Since the majority of Decedent's assets were jointly held with Shirley, Appellants stood to inherit nothing from Decedent's estate except some of his personal effects and household items.¹

Appellants commenced this action against Shirley, Attorney Yingst, and the Law Firm seeking recourse for the failure of their legacy.² Their amended complaint alleged fraud, breach of contract, professional negligence, intentional infliction of emotional distress, and sought, inter alia , imposition of a constructive trust, accounting, attorney fees, and punitive damages. Preliminary objections were sustained to the professional negligence count and request for attorney fees.

The thrust of Appellants' claims is that, despite Decedent's clear intent to benefit them expressed in his Will, all assets were held in joint name with Shirley, and therefore passed to Shirley as the survivor. Appellants asserted alternative theories as to why their legacy failed. Either Attorney Yingst failed to advise Decedent and Shirley that jointly-held property, and specifically, joint bank accounts, would presumptively pass to the survivor upon the death of a party, and not under the Will; or, if he so advised them, Shirley used that knowledge to place all assets in joint name to avoid any assets passing under the Will. Appellants maintain that, "their father could not possibly have intended they receive ‘1/4 of nothing.’ " Appellants' brief at 9.

Under either theory, evidence of what Decedent and Shirley disclosed to Attorney Yingst about their assets and how they were held, and what Attorney Yingst advised them about the disposition of jointly-held property upon death, was highly relevant. However, those same communications were subject to the attorney-client privilege, and Shirley invoked the privilege throughout the discovery process to shield those communications from Appellants.

Shirley and Attorney Yingst each moved for summary judgment, but the motions were denied on August 13, 2014.³ In advance of trial, the Honorable Stephen P. Linebaugh ruled on motions in limine and objections to proposed trial exhibits. The court precluded Appellants from presenting certain oral testimony, ruling that it was inadmissible parol evidence offered to contradict the clear and unambiguous testamentary intent expressed in Decedent's Will. The court also ruled that certain handwritten documents purportedly authored by Decedent were inadmissible, concluding that they were unauthenticated, hearsay, and irrelevant. The court also precluded Appellants from offering John's medical records in support of his claim for intentional infliction of emotional distress without expert testimony.⁴

A jury trial commenced on March 16, 2015, before the Honorable David E. Grine. During opening statements, counsel for Attorney Yingst advised the jury that Shirley remembered what had been discussed with Attorney Yingst, and that she would testify regarding those communications. Furthermore, Attorney Yingst would testify that he advised Decedent and Shirley that joint accounts would pass outside the Will. Appellants objected and asserted that they were prejudiced by the late waiver of the privilege and the surprise testimony. They moved for a mistrial, or in the alternative, that the testimony be excluded, or that trial be continued to permit them to depose Shirley and Attorney Yingst to ascertain the nature of their testimony. The court overruled the objection, denied the mistrial, and ignored the request to exclude the testimony or permit limited discovery. The trial proceeded, and at the conclusion of Appellants' case-in-chief, the court granted a nonsuit upon motion of Appellees.

Appellants timely filed post-trial motions, which the trial court denied. A divided panel of this Court vacated the judgment, reversed the order granting Appellees' motion for nonsuit, and remanded the case for further proceedings. We granted en banc review to consider the following issues, which we have re-ordered for ease of disposition:

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

2. Did the trial court err in denying reconsideration of the in limine and trial exhibit orders as to evidence of testamentary intent?

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

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

Substituted brief of Appellants at 3 (unnecessary capitalization omitted).

This is an appeal from an order granting a motion for compulsory nonsuit.

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff's evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury.

Parker v. Freilich , 803 A.2d 738, 744-45 (Pa.Super. 2002). "When we review the grant of a non-suit, we must resolve all conflicts in the evidence in favor of the party against whom the non-suit was entered. A compulsory nonsuit is proper only where the facts and circumstances compel the conclusion that the defendants are not liable upon the cause of action pleaded by the plaintiff." Brodowski v. Ryave , 885 A.2d 1045, 1060 (Pa.Super. 2005) (quoting Shay v. Flight C Helicopter Servs. , 822 A.2d 1, 13 (Pa.Super. 2003) ).

Appellants contend that the trial court erred in failing to either grant a mistrial or allow time to conduct additional discovery when Shirley waived the attorney-client privilege at trial, after previously asserting it throughout discovery. They stress the fundamental unfairness of permitting the attorney-client privilege to be used as a shield to evade discovery, and as a sword to facilitate trial by ambush. Appellants rely upon the Supreme Court's recent decision in In re Thirty-Third Statewide Investigating Grand Jury , 624 Pa. 361, 86 A.3d 204, 216-17 (2014), reiterating that the purpose of the privilege is to "foster candid communications between counsel and client" for the benefit of "the systematic administration of justice." What...