In Joyner v. Southeastern Pennsylvania Transportation Authority, 736 A.2d 35 (PA 1999), the Court held the tape-recorded message of plaintiff should not be cloaked with the attorney-client privilege as the plaintiff Mr. Joyner failed to establish the reasonableness of his subjective belief that he was communicating with his attorney.
In Joyner, the plaintiff inadvertently left a message on opposing counsel's voice mail system when he thought he was leaving a message for his counsel.
The attorney for Joyner filed a motion in limine to preclude the admission of this tape-recorded message as coming within the attorney-client privileged.
The trial court denied the motion and the appellate court affirmed stating that the plain language of the statutory privilege is not applicable under the facts of the case as the receiver of the message was not counsel for Mr. Joyner.
Thus, the defendant was not precluded by the plain language of the statute from presenting evidence of what Mr. Joyner stated on the opposing counsel's voicemail. Because Mr. Joyner was not opposing counsel client there was no "confidential communication made to by his client" within the meaning of the statute.
Moreover, the court in Joyner never reached the waiver issue because it stated that as a perquisite to the analysis of whether privilege was waived, one must first establish the existence of the attorney-client relationship. The Court concluded that Mr. Joyner failed to establish such a relationship.