Despite the Pennsylvania Superior Court en banc’s deep split on the issue, the state Supreme Court will not review a ruling that a litigant who asserts attorney-client privilege before trial may not unfairly surprise their adversary by waiving that privilege on the stand.

In December 2016, a three-judge panel of the Superior Court, 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.