J-A03023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FIRST NATIONAL BANK WEALTH                          IN THE SUPERIOR COURT OF
MANAGEMENT, GUARDIAN OF THE                               PENNSYLVANIA
ESTATE OF G.T., A MINOR

                           Appellant

                    v.

KINDERCARE LEARNING CENTERS,
D/B/A STATE COLLEGE KINDERCARE
AND CHRIS MILEY

                           Appellees                      No. 565 MDA 2016


               Appeal from the Order Entered March 9, 2016
              In the Court of Common Pleas of Centre County
                      Civil Division at No: 2014-4296


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 17, 2017

     Appellant, First National Bank Wealth Management, Guardian of the

Estate of G.T. (“Appellant”), appeals from the March 9, 2016 order entered

in the Court of Common Pleas of Centre County (“trial court”) denying its

motion for a protective order and granting Appellees’, Kindercare Learning

Centers,   D/B/A   State    College    Kindercare   and   Chris   Miley   (together

“Appellees”), motion to compel. Upon review, we quash.

     The trial court summarized the relevant factual background as follows.

     This case involves personal injury claims brought on behalf of
     [G.T.], a minor, . . . by and through [Appellant] as guardian of
     the minor estate. [G.T.] was three years old at the time of the
     alleged incident giving rise to this action, and is currently six
     years old.
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            The underlying incident is alleged to have occurred on
      October 3, 2013[,] at [Appellee] Kindercare Learning Centers
      d/b/a State College Kindercare (“Kindercare”).        [G.T.] was
      enrolled at Kindercare for child care services at that time.
      [Appellant] alleges that on that date, [Chris Miley (“Miley”)], a
      Kindercare employee, instructed [G.T.] to take a nap. According
      to [Appellant], [Miley] then determined that the child was not
      lying down as instructed, and she forced [G.T.] to lay face down
      on the floor by using her body weight, suffocating [G.T.] and
      causing him severe injuries. [Appellant] claims that another
      Kindercare employee was present and failed to intervene. [The
      Bank] claims that [G.T.’s] [m]other noted visible signs of injury
      when she picked him up that day, and that [G.T.] immediately
      reported that a teacher had stepped on him. [Appellant] claims
      that [G.T.] suffered severe physical and psychological injuries
      that are ongoing and will continue into the future.

            In the course of discovery, [Appellees] sought to take the
      deposition of [G.T.]. [Appellees] issued a notice for [G.T.’s]
      deposition for November 18, 2015. [Appellant] objects to the
      deposition being taken without first having a competency hearing
      and determination by the [trial court].         [Appellant] filed a
      [m]otion for [p]rotective [o]rder on December 4, 2015.
      [Appellees] filed a [m]otion to [c]ompel [G.T.’s] deposition on
      January 15, 2016. Oral argument was heard on January 28,
      2016, and the parties were given time to submit supplemental
      briefs if desired. By [o]rder dated March 9, 2016, the [trial
      court] granted [Appellees’] [m]otion to [c]ompel, and denied
      [Appellant’s] [m]otion for [p]rotective [o]rder.

Trial Court Opinion, 6/24/16, at 2-3 (citations and footnotes omitted).

      Appellant raises four issues on appeal, which we quote verbatim.

      I.    Whether a party may conduct the deposition of a six (6)
            year old child who, by virtue of their immaturity, is
            presumed to be an incompetent witness[.]

      II.   Whether the trial court abused its discretion by denying
            [Appellant’s] motion for protective order where the
            [Appellees’] noticed the deposition of a six (6) year old
            child and [Appellant] sought a protective order through
            which [Appellant] requested that the trial court determined
            whether the child was competent to testify under oath


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J-A03023-17


             prior to permitting the deposition of said six (6) year old
             child[.]

      III.   Whether the trial court abused its discretion by denying
             [Appellant’s] motion for protective order whereby
             [Appellant] requested that the court determine whether a
             six (6) year old child was competent to testify under oath
             prior to the deposition and instead permitted the
             deposition to proceed and ordered defense counsel to
             explore issues of competency during the deposition itself[.]

      IV.    Whether the deposition of a six (6) year old child is
             reasonably calculated to lead to the discovery of
             admissible evidence where the child’s ability to appreciate
             the significance of the oath, ability to communicate and his
             consciousness of the duty to speak the truth have not been
             determined[.]

Appellant’s Brief at 9.

      Before we can address the merits of Appellant’s claims, we must

address whether this Court has jurisdiction to hear the appeal. Appellant is

claiming that this court has jurisdiction pursuant to Pa.R.A.P. 313, which

provides that “[a]n appeal may be taken as of right from a collateral order of

an administrative agency or lower court.” Pa.R.A.P. 313. A collateral order

is one that is “[(1)] separable from and collateral to the main cause of action

where [(2)] the right involved is too important to be denied review and [(3])

the question presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.” Id. Moreover, “the

collateral order doctrine is to be construed narrowly, and we require every

one of its three prongs be clearly present before collateral appellate review

is allowed.”   Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d

1121, 1126 (Pa. 2009) (citing Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003);


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J-A03023-17



Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999)).              “[I]n general,

discovery orders are not final, and are therefore unappealable.”        T.M. v.

Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super. 2008) (quoting Jones v.

Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004)). “The purpose of discovery

is to expedite litigation.”   Boyle v. Steiman, 631 A.2d 1025, 1031 (Pa.

Super. 1993) (citation omitted).     Our courts have routinely held that the

scope of discovery is liberal. See Barrick v. Holy Spirit Hosp. of Sisters

of Christian Charity, 91 A.3d 680 (Pa. 2014). “A discovery order is

collateral only when it is separate and distinct from the underlying cause of

action.” T.M., 950 A.2d at 1056 (quoting Feldman v. Ide, 915 A.2d 1208,

1211 (Pa. Super. 2007)).

      In the matter sub judice, Appellant’s claims are intertwined and can be

summarized as whether the trial court erred in denying the protective order

and permitting Appellees to depose G.T. As all three prongs of the collateral

order doctrine must be satisfied, we need only find that one of the prongs

fails in order to quash the appeal for want of jurisdiction.     See Rae, 977

A.2d at 1126.

      Notably, Appellant fails to satisfy the third prong of the collateral order

doctrine, that if review is postponed until final judgment in the case, the

claim will be lost.

      To satisfy this element, an issue must actually be lost if review is
      postponed. Orders that make a trial inconvenient for one party
      or introduce potential inefficiencies, including post-trial appeals
      of orders and subsequent retrials are not considered as


                                      -4-
J-A03023-17


       irreparably lost. An interest or issue must actually disappear
       due to the process of trial.

Keefer v. Keefer, 741 A.2d 808, 813 (Pa. Super. 1999) (internal citations

omitted), disapproved on other grounds, Kincy v. Petro, 2 A.2d 490

(Pa. 2010). Pursuant to Pa.R.Civ.P. 4016(b)

       Objections to the competency of a witness or to the competency,
       relevancy, or materiality of the testimony are not waived by
       failure to make them before or during the taking of the
       deposition, unless the ground of the objection is one which was
       known to the objecting party and which might have been
       obviated or removed if made at that time.

Pa.R.Civ.P. 4016(b). Thus, Appellant has the opportunity to challenge the

competency of G.T. before or during the deposition. Therefore, the claim is

not lost.1   Similarly, if Appellant has an objection to the competency of G.T.

at trial, Appellant could raise the issue at that time.   See Pa.R.Evid. 601(b).

As Appellant has failed to establish the third prong of the collateral order

doctrine, we quash the instant appeal.




____________________________________________


1
  The instant mater is distinct from an interlocutory appeal of a discovery
order involving privileged information. See In re Estate of Moskowitz,
115 A.3d 372, 389 (Pa. Super. 2015) (discovery orders involving privilege
are appealable under the collateral order doctrine.)



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J-A03023-17



     Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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