Dead Man's Act Still Alive And Well

Although the Dead Man's Act is riddled with exceptions, it can still sometimes apply to dramatically affect a case.

In the case of Loeffler v. Douglass, No. CI-22-00454 (C.P. Lanc. Co. Aug. 13, 2024 Brown, J.), the Court held that the Dead Man’ s Act applied to prevent a plaintiff from testifying as to any element of negligence. 

The Dead Man's Act precludes "any person whose interest shall be adverse" to the interests of the deceased party from testifying "to any matter occurring before the death" of the deceased.  42 Pa.C.S.A.  Section 5930.  The Act was passed to prevent the injustice that may arise from permitting a surviving adverse party to give testimony that is favorable to himself or herself and to the detriment of the decedent's interest and that the decedent's representative cannot rebut.

This case arose out of a motor vehicle accident. The plaintiff filed suit against the allegedly negligent defendant driver. 

The defendant-driver served plaintiff with interrogatories and requests for production of documents. 

Thereafter, before the plaintiff responded to defendant's discovery, the defendant driver died.  Counsel for the defendant-driver withdrew the discovery. 

Subsequently, the administrator of the estate of the defendant driver was substituted as a defendant. 

The defendant administrator served plaintiff with requests for production of documents and served several non-parties with subpoenas.  Notably, the defense did not serve interrogatories and had not yet requested any depositions.  The defendant administrator also filed a motion in limine, based on the Dead Man’s Act, to preclude plaintiff from testifying as to any element of negligence. 

The plaintiff claimed that the protections of the Dead Man’s Act had been waived by virtue of the discovery which had taken place. 

The Court rejected these arguments and found that neither the type discovery propounded by the defendant-driver, while alive, nor the discovery propounded by the defendant administrator after the death of the defendant-driver served to waive the protections afforded by the Dead Man’s Act.  The Court reviewed the Dead Man's Rule and emphasized that here, the defense had not served interrogatories and had not yet requested testimony by any other means.  As such, the discovery waiver did not apply because the defense had not requested any testimony with the discovery requests propounded.

Accordingly, based on an application of the Dead Man's Act, the Court held that plaintiff was precluded from testifying as to any element of negligence.  The Court added that, if plaintiff could establish a prima facie case of negligence by other means, then plaintiff would be allowed to testify about the extent of plaintiff’s damages.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Benjamin P. Novak of the Lancaster, PA office of Fowler, Hirtzel, McNulty & Spaulding, LLC for bringing this case to my attention.

Pennsylvania Superior Court Addresses Dead Man's Rule

In the case of Frazer v. McIntyre, 2021 Pa. Super. 211 (Pa. Super. Oct. 20, 2021 McCaffery, J.), the Pennsylvania Superior Court provided its latest pronouncement on the Dead Man’s Rule, 42 Pa. C.S.A. §5930.

In this decision, the court noted that the Dead Man’s Act provides that one whose interest is adverse to the interest of a decedent is not a competent witness to any matter which occurred before the decedent’s death.

In order for the Deadman’s Rule to apply such that a surviving witness is disqualified, the following three (3) conditions must be met:

First, the decedent must have had an actual right or interest in the matter at issue.

Second, the interest of the witness, and not simply the testimony of that witness, must be adverse.

Third, a right of the deceased must have past to a party of record who represents the decedent’s interests.

The court also reviewed the devisavit vel non exception further provides that witnesses are competent to testify in disputes arising over the passage of property, through will or intestacy, although their testimony might otherwise be rendered in competent through the operation of the general rule under the Dead Man’s Act. 

This exception was noted to apply to disputes involving transfer of the decedent’s estate both by operation of law or by will and renders competent all witness claiming the decedent’s property by reason of his death.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Daniel J. Siegel of the Law Offices of Daniel J. Siegel in Havertown, Pennsylvania for bringing this case to my attention.

Dead Man's Rule Applied to Affirm Entry of Judgment in Favor of Deceased Defendant

In its latest application of the Dead Man’s Rule, the Pennsylvania Superior Court in the case of Jones v. Plumer, 2020 Pa. Super. 7 (Pa. Super. Jan. 15, 2020) ruled that a Plaintiff would not be able to testify in a case against her landlord in a trip and fall matter, where the landlord died before he could provide any counter testimony. 

The court also ruled that, given that the Plaintiff was not able to testify in the matter, the other evidence did not sufficiently support a finding of causation.

As such, the Superior Court affirmed the entry of summary judgment in favor of the Defendant by the trial court. 

Anyone wishing to review a copy of this decision may click this LINK.

The 2017 TORT TALK TOP TEN

Here is the annual 2017 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts:

1.         Elements of a Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington Nat'l Ins. Co., No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

The Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of (1) that the carrier did not have a reasonable basis for denying benefits under the policy, and (2) that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to confirm that evidence of a motive of self-interest or ill will was not a prerequisite for a Plaintiff to prevail on a statutory bad faith claim. 

The Majority Opinion written by Justice Baer can be reviewed HERE.

Chief Justice Saylor's Concurring Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

2.         Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), which arose out of a motor vehicle v. pedestrian accident matter, the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person's blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court's discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court's related assessment of whether the evidence establishes the party's unfitness to act in light of the alleged intoxication.

The Court's Majority Opinion, Concurring Opinion, and Dissenting Opinion can be viewed at this LINK.

3.         Attorney-Client Privilege

In the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017 Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.), the Pennsylvania Superior Court affirmed the granting of a motion to compel surrounding a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney/client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm.  It was noted that the public relations firm was not a part of the team offering legal advice.  

The court also found that the work product protection was waived for the same reason.  

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney/client privilege and the work product privilege.

Anyone wishing to review a copy of this decision may click this LINK.   

4.         Use of Powerpoint at Trial

In the case of W.C. v. Janssen Pharmaceuticals, Inc., 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017 Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court.   This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the Closing Argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.  

Anyone wishing to review a copy of this decision may click this LINK.

5.         Dead Man’s Rule

The Pennsylvania Superior Court’s provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.   

Anyone wishing to review a copy of this decision may click this LINK.

6.         Statute of Limitations for a UM Arbitration Case

In the case of Bristol v. Erie, No. 124 MAP 2016 (Pa. Nov. 22, 2017) (Maj. Op. by Mundy, J.) (Wecht, J., Dissenting) the Pennsylvania Supreme Court held that the statute of limitations in an uninsured motorist case does not begin to run until there is an alleged breach of the insurance contract, i.e., the denial of a claim or a refusal to arbitrate.

 This was a 6-1 decision with Justice David Wecht dissenting on procedural grounds.

The Court delineated the specific issue before it as involving the question of when the statute of limitations begins to runs for a court action in an uninsured (UM) motorist claim arising out of an automobile insurance policy containing an arbitration agreement. 

The Pennsylvania Supreme Court noted that this was an issue of first impression in its Court.

The Bristol decision reverses the Pennsylvania Superior Court's previous ruling in Hopkins v. Erie, which held that the statute of limitations in an uninsured motorist (UM) benefits claim begins to run on the date of the accident.

In its analysis, the Pennsylvania Supreme Court noted that the mandates of Pennsylvania statute of limitations law provide that the statute of limitations begins to run from the time a cause of action accrues or arises. 

The Supreme Court noted that a cause of action in a UM context accrues or arises when a carrier is alleged to have breached its contract of insurance.  The Court more specifically held that an uninsured motorist (UM) claim begins when a carrier denies the claim or refuses to arbitrate.

Given that the carrier had not denied coverage or refused to arbitrate in this particular case, the court ruled that the lower courts had erred in granting summary judgment in favor of the carrier on its statute of limitations argument.

The Majority Opinion from Bristol can be read HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

7.         Cell Phone Use in a Motor Vehicle Accident

Another recurring issue in civil litigation matters that continued over the past year is the extent to which cell phone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed Order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017 McFadden, J.), the court allowed a claim punitive damages to proceed beyond the Preliminary Objections stage in a case where the Plaintiff alleged that the Defendant rear ended the Plaintiff's vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the Plaintiff had not produced evidence in support of this claim.

Anyone wishing to review this decision may click this LINK.

In the Federal Court case  of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), the court held that evidence of a plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible at trial.

Anyone wishing to review a copy of this decision may click this LINK.

8.         Limited Tort

In its latest review of limited tort law in the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the Pennsylvania Superior Court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

The court in Vetter more specifically noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

 Anyone wishing to review a copy of this decision may click this LINK. 

9.         Post-Koken Issues

A number of recurring issues in Post-Koken automobile accident matters continued to be litigated across the Commonwealth of Pennsylvania. 

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a Post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation. 

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation.  The Stepanovich decision suggests, but did not decide, that Post-Koken claims could be tried together. 

Unfortunately, in 2014, the Pennsylvania Supreme Court inexplicably denied allocatur in Stepanovich, thereby squandering a great opportunity to provide the bench and the bar with much needed guidance on important Post-Koken issues.

In Post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and/or stay orders relative to the bad faith claims.  There is a split of authority amongst the trial courts, but the federal courts seem to be trending towards denying motions to sever and stay bad faith claims.

Please check out the Tort Talk Post-Koken Scorecard at this LINK to review the cases in this regard.

10.       Jury Instructions in Post-Tincher Products Liability Cases

Here is a LINK to a set of Products Liability Suggested Standard Jury Instructions drafted by members of the Products Liability Committee of the Pennsylvania Defense Institute and which has been published in the October, 2017 edition of Counterpoint, a PDI publication.   The Committee was led in this regard by William J. Ricci, Esquire, C. Scott Toomey, Esquire, and James M. Beck, Esquire.

These suggested jury instructions were drafted in response to the proposed instructions for products cases issued in the summer of 2016 by the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions.


The debate over proper instructions for products cases arises out of the differing opinions as to the import and analysis of the Tincher v. Omega Flex case.

ARTICLE: Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends

The below article of mine recently appeared in the December 14, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends
 

By Daniel E. Cummins
Pennsylvania Law Weekly
December 14, 2017

Another year of litigation has come to a close. Given that precedent has a way of repeating itself here’s a look back at notable decisions from the past year.

Elements of Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

In Rancosky, the Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Property & Casualty Insurance, 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of: that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to note that evidence of a motive of self-interest or ill will was not a prerequisite for a plaintiff to prevail on a statutory bad faith claim.

Dead Man’s Rule

The Pennsylvania Superior Court provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930, in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the defendant’s participation in discovery when no depositions or Interrogatories were completed.

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a new matter pursuant to Pa. R.C.P. 1030 in order to be preserved.

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.

Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person’s blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Coughlin case arose out of a motor vehicle versus pedestrian accident.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court’s discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court’s related assessment of whether the evidence establishes the party’s unfitness to act in light of the alleged intoxication.

Use of Powerpoint at Trial

The use of visually stimulating powerpoint exhibits at trial has become the norm in the digital age.

In the case of W.C. v. Janssen Pharmaceuticals, 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017, Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court. This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the closing argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.

Cellphone Use

Another recurring issue in civil litigation matters is the extent to which cellphone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.), the court allowed a claim punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff alleged that the defendant rear-ended the plaintiff’s vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the plaintiff had not produced evidence in support of this claim.

Attorney-Client Privilege

The attorney-client privilege and the attorney work product doctrine were both reviewd in the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017, Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.). The Pennsylvania Superior Court affirmed the granting of a motion to compel the production of a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney-client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm. It was noted that the public relations firm was not a part of the team offering legal advice.

The court also found that the work product protection was waived for the same reason.

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney-client privilege and the work product privilege.

Limited Tort

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court’s decision that a plaintiff’s insomnia did not amount to a serious impairment of a body function for a limited tort the plaintiff under the facts presented.

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

Post-Koken Issues

A number of recurring issues in post-Koken automobile accident matters continued to be litigated across the commonwealth of Pennsylvania.

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation.

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation. The Stepanovich decision suggests, but did not decide, that post-Koken claims could be tried together.

In post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and stay orders relative to the bad faith claims. There is a split of authority among the trial courts, but the federal courts seem to be trending toward denying motions to sever and stay bad faith claims.

A Look Ahead into 2018

As this year comes to an end, there are also important rule changes and potential important decisions to anticipate in 2018.

One decision to keep an eye out for would be the one in the Pennsylvania Supreme Court case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017). The court is expected to address issues pertaining to the validity of household exclusions and stacking issues with respect to automobile insurance policies.

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court issued an order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she was suffering from the disease for years before filing the suit.

The court has agreed to address the more specific issue of whether the plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the plaintiff “did not and was financially unable to, confirm [the defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”

A split Pennsylvania Superior Court panel previously ruled in this case that the plaintiff’s claims were barred by the two-year statute of limitations.

Civil litigators should also be aware that the Public Access Policy of the Unified Judicial System of Pennsylvania is about to go into effect and that they may face sanctions if they do not comply with the mandates of this new policy pertaining to the filing of documents with the court.

By way of background, with the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective Jan. 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.”

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other certification documents will have to be filed as well. More information on this new policy may be found on the AOPC’s website or at a number of CLE courses being held around the commonwealth.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation Services at www.CumminsMediationServices.com. Contact him at dancummins@comcast.net.

 

Pennsylvania Superior Court's Latest Take on the Dead Man's Rule

For the Pennsylvania Superior Court’s latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.  

 

Anyone wishing to review a copy of this decision may click this LINK.

 

Source: “Case Summaries” by Timothy L. Clawges, Pennsylvania Bar News (March 20, 2017).

A Nice Primer on the Dead Man's Rule

A nice primer on the Dead Man’s Rule is provided by the court in the case of Davis v. Wright, July Term 2015, PICS Case No. 1828 (C.P. Phila. Co. Aug. 2, 2016 Robinson, J.) in which the court recommended its decision granting summary judgment in favor of the Defendants be affirmed on appeal on the basis of the application of the Dead Man’s Rule.

In its Opinion, the court reviewed the parameters of the Dead Man’s Act, 42 Pa. C.S.A. §5930, and also reviewed ways in which that defense could be waived.  

The court found that the defense was not waived in this matter and, instead, applied to support the entry of summary judgment in favor of the Defendants in a car accident case in which the Defendant died. 

The court agreed with the defense position that the Plaintiff witnesses were incompetent as witnesses under the Dead Man’s Act and that, without the testimony of these witnesses, the Plaintiffs were unable to carry of burden of proof of negligence at trial.  

The court also rejected the Plaintiff’s attempt to rely on the testimony of the investigating officer, who was not a witness to the accident.  

 

Anyone wishing to review a copy of this decision may click this LINK. 

 

Source:   “Instant Case Digest,” Pennsylvania Law Weekly (September 2, 2016).