A litigant who asserts attorney-client privilege before trial may not unfairly surprise their adversary by waiving that privilege on the stand, a deeply split Pennsylvania Superior Court en banc has ruled, reaching the same conclusion arrived at by a divided three-judge panel in 2016.

In December 2016, the original panel, addressing an issue of first impression, ruled 2-1 in Gregury v. Greguras that a defendant who asserted her attorney-client privilege during the discovery phase in a dispute over a will should not have been allowed to waive that privilege once the case got to trial.