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Home My WebLink About94-6054 Civil LawKAREN H. NEIDIG, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : LARRY O. NEIDIG, : Defendant : NO. 94-6054 CIVIL TERM IN RE: ATTORNEY-CLIENT PRIVILEGE BEFORE OLER, J. ORDER OF COURT AND NOW, this~J'~day of February, 1995, for the reasons stated in the accompanying Opinion, Plaintiff's objection to Defendant's offer of testimony from the scrivener of the post-nuptial agreement at issue in Plaintiff's Petition for Special Relief is DENIED. BY THE COURT, J. Wesley Ole~, Jr., J. James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Plaintiff Marlin R. McCaleb, Esq. Frankeberger Place 219 East Main Street Mechanicsburg, PA 17055 Attorney for Defendant KAREN H. NEIDIG, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW : LARRY O. NEIDIG, : Defendant : NO. 94-6054 CIVIL TERM IN RE: ATTORNEY-CLIENT PRIVILEGE BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This case was commenced by a complaint filed in divorce by Karen H. Neidig (Plaintiff) against her husband, Larry O. Neidig (Defendant), on October 20, 1994. A Petition for Special Relief was filed by Plaintiff on October 27, 1994, and a hearing was held to consider the Petition on Monday, December 12, 1994, before the undersigned judge. At this hearing, an issue arose with regard to the attorney-client privilege, which is the subject of this Opinion. For the following reasons, the privilege will not be held to preclude certain testimony proffered by Defendant. The facts may be summarized as follows: The Petition for Special Relief filed by Plaintiff requests this Court to enforce a post-nuptial agreement (Agreement) entered into by the parties.~ The Agreement was drafted by Kathy A. Morrow, Esquire, and signed by the parties on May 18, 1992.2 Ms. Morrow was representing Plaintiff at the time;3 Defendant was not represented by counsel. See Petition for Special Relief. Petition for Special Relief, paragraph 3, and Exhibit A. Defendant's Brief Re: Attorney-Client Privilege, at 1; Brief of Karen H. Neidig in Support of the Issue of Attorney-Client Privilege, at 2. NO. 94-6054 CIVIL TERM At the hearing on the Petition for Special Relief, the Court heard testimony from both parties. The testimony showed that Plaintiff and Defendant met twice in the office of Ms. Morrow with regard to the Agreement. Following execution of the Agreement, a dispute arose as to the meaning of certain provisions. A resolution of this dispute is necessary to a proper ruling on Plaintiff's Petition. The provisions in question are contained in paragraphs five and six of the Agreement. The second sentence of paragraph five provides that "[h]usband agrees to pay and be solely liable for the obligation due DAFCU (the home equity loan and Choice/Visa consolidation loan) and for the mortgage on the marital residence due and owing to F.M.H.A.U.S. Dept. of Agriculture."4 The third sentence of paragraph 6 of the Agreement states "[t]he parties agree that the method for determining the value and distribution of the value of the house shall be decided if and when a divorce action is filed by either party.''5 According to testimony adduced at the hearing, the appraised value of the property in question is $85,000.00. Plaintiff claims that, pursuant to the Agreement, she is entitled to one-half of this amount, without any deductions for mortgages or home equity Petition for Special Relief, Exhibit A, paragraph 5. Petition for Special Relief, Exhibit A, paragraph 6. 2 NO. 94-6054 CIVIL TERM loans.6 According to Defendant's testimony, however, it was his understanding that after the outstanding liens were paid, the equity would be split evenly between the parties. It appears to the Court that the provisions are at least arguably susceptible of both interpretations. At the hearing, Defendant sought to call the scrivener of the document, Ms. Morrow, to testify with regard to these provisions. Plaintiff objected to such testimony on the basis of the attorney- client privilege. Defendant requested a continuance and the opportunity to brief the issue of whether the attorney-client privilege should be held to preclude the testimony of Ms. Morrow. The request was granted7 and briefs have now been received from counsel. Pennsylvania has codified the common-law attorney-client privilege as follows: In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. Act of July 9, 1976, P.L. 586, S2, 42 Pa. C.S.A. §5928. The attorney-client privilege applies to communications only if: (1) the asserted holder of the privilege is or 6 Petition for Special Relief, paragraph 8. ? See Order of Court, December 12, 1994. 3 NO. 94-6054 CIVIL TERM sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege had been (a) claimed and (b) not waived by the client. Marian Bank v. Lawrence Voluck Associates, Inc., 26 D. & C.3d 48, 51 (Philadelphia County 1982). The doctrine of attorney-client privilege, however, is subject to several well-established exceptions, one of which is pertinent herein. Loutzenhiser v. Doddo, 436 Pa. 512, 518, 260 A.2d 745, 748 (1970). "A communication between attorney and client is not privileged if it takes place in the presence of a third person or of the adverse party." Tracey v. Tracey, 377 Pa. 420, 424, 105 A.2d 122, 125 (1954). In addition, the use of parol evidence as to the intent of parties to a marital settlement agreement where the interpretation of an ambiguity is involved is often sanctioned. See Creeks v. Creeks, 422 Pa. Super. 432, 619 A.2d 754 (1993). When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties understanding. The court must construe the contract only as written and may not modify the plain meaning of the words under the guise of interpretation. When the 4 NO. 94-6054 CIVIL TERM terms of a written contract are clear, [a] Court will not re-write it or give it a construction in conflict with the accepted and plain meaning of the language used. Conversely, when the language is ambiguous and the intention of the parties cannot be reasonably ascertained from the language of the writing alone, the parol evidence rule does not apply to the admission of oral testimony to show both the intent of the parties and the circumstances attending the execution of the contract. Id. at 435, 619 A.2d at 756 (1993) (citations omitted). In Estate of McKenna, 340 Pa. Super. 105, 489 A.'2d 862 (1985), the testimony of the scrivener of a will was permitted to testify with regard to the intent of the testator. Where language of the testator is unimpeached, but equivocal or ambiguous, declarations of the testator's intent are admissible for purposes of interpretation. Declarations alleged to have been made by the testator to the scrivener of his will are not admissible to alter or add to the terms of a will where a will is clear and unambiguous. If the will is ambiguous on its face, the court may look to extrinsic evidence to aid in interpretation. Id. at 114-15, 489 A.2d at 867 (1985). Since both parties were present with Ms. Morrow on two occasions with regard to the Agreement, any communications between Ms. Morrow and Plaintiff at those times can not be considered privileged. In addition, the provisions in paragraphs five and six of the Agreement are arguably ambiguous. Therefore, Ms. Morrow will be permitted to testify as to what was said on these two occasions with regard to her understanding of the intent of the 5 NO. 94-6054 CIVIL TERM parties as to the disputed provisions. ORDER OF COURT AND NOW, this day of February, 1995, for the reasons stated in the accompanying Opinion, Plaintiff's objection to Defendant's offer of testimony from the scrivener of the post-nuptial agreement at issue in Plaintiff's Petition for Special Relief is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Plaintiff Marlin R. McCaleb, Esq. Frankeberger Place 219 East Main Street Mechanicsburg, PA 17055 Attorney for'Defendant :rc 6