J-A08036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARIE REIS AND SCOTT J. REIS,              :   IN THE SUPERIOR COURT OF
    H/W                                        :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    SCOTT J. REIS, ADMINISTRATOR OF            :
    THE ESTATE OF BARBARA REIS,                :   No. 3075 EDA 2019
    DECEASED                                   :
                                               :
                       Appellant               :

              Appeal from the Order Entered September 24, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                              No(s): 190201075


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                               FILED JUNE 03, 2020

        In this slip and fall case, Scott J. Reis (Appellant), administrator of the

estate of Barbara Reis (Decedent), deceased, appeals from the discovery

order entered in the Philadelphia County Court of Common Pleas. Appellant

contends the discovery order is appealable as a collateral order under

Pa.R.A.P. 313 because, inter alia, his compliance with the order would result

in waiver of his “defense” under the so-called Dead Man’s Act.1 We quash.


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1   42 Pa.C.S. § 5930. The statute provides, in pertinent part:

        [I]n any civil action or proceeding, where any party . . . is
        dead . . . and his right thereto or therein has passed . . . to a party
        on the record who represents his interest in the subject in
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       For ease of discussion, we first note: “The Dead Man’s Act is an

exception to the general rule of evidence in this Commonwealth that: ‘no

interest or policy of law . . . shall make any person incompetent as a witness.”

Larkin v. Metz, 580 A.2d 1150, 1152 (Pa. Super. 1990), citing 42 Pa.C.S.A.

§ 5921. “The 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.” Schroeder v. Jaquiss, 861 A.2d 885, 887 (Pa. 2004).

       [T]he purpose behind the legislatively enacted Dead Man’s Statute
       is that the decedent’s representative is in no position to rebut the
       assertions presented by the adverse party, and thus, it would be
       unfair to permit a surviving adverse party to give testimony that
       is favorable to himself and unfavorable to the decedent’s interest.

Davis v. Wright, 156 A.3d 1261, 1268 (Pa. Super. 2017).

       The purpose of the statute is to prevent the injustice that may
       result from permitting a surviving [witness] to a transaction to
       give testimony favorable to himself and adverse to the decedent,
       which the decedent’s representative would be in no position to
       refute by reason of the decedent’s death.

             Under the Dead Man’s Act three conditions must exist before
       the surviving party or witness is disqualified: “(1) the deceased
       must have had an actual right or interest in the matter at issue,
       i.e. an interest in the immediate result of the suit; (2) the interest
       of the witness—not simply the testimony—must be adverse; (3) a


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       controversy, neither any surviving or remaining party to such
       thing or contract, nor any other person whose interest shall be
       adverse to the said right of such deceased . . . shall be a
       competent witness to any matter occurring before the death of
       said party . . . .

42 Pa.C.S. § 5930.


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       right of the deceased must have passed to a party of record who
       represents the deceased’s interest.”

Larkin, 580 A.2d at 1152 (citations omitted).

       Appellant’s mother, Decedent, died on January 18, 2017. Five weeks

thereafter, on February 22, 2017, Appellant’s wife, Marie Reis (Wife),

allegedly slipped and fell on the sidewalk of property then owned by

Decedent’s estate.

       On February 13, 2019, Wife and Appellant together, as husband and

wife, filed a praecipe for writ of summons, naming Appellant, in his capacity

as administrator of Decedent’s estate, as the defendant. On April 10, 2019,

however, Wife proceeded solely in filing a negligence complaint against

Appellant, again as the administrator of Decedent’s estate.2 Appellant filed

an answer and new matter, in which he claimed, inter alia, Wife’s “claim is

barred by the Dead Man[‘]s Statute.”             Appellant’s Answer & New Matter,

4/18/19, at 3 (unpaginated).

       On August 29, 2019, Wife filed a motion to compel discovery, explaining

Appellant had informed her he “intend[s] to assert the Dead Man’s rule and

not respond to any discovery requests.” Wife’s Motion to Compel Discovery

Responses, 8/29/19, at 2. Wife argued the Dead Man’s Act was not applicable

because, inter alia, her slip and fall occurred after Decedent’s death.


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2 Despite the complaint’s identification of only Wife as a plaintiff, Wife’s
appellate brief erroneously indicates that both she and Appellant were
plaintiffs.

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Following oral argument, the trial court granted Wife’s motion on September

24, 2019, and directed Appellant to respond to Wife’s requests for documents

and to submit to a deposition. The order also stated, however, that Appellant’s

compliance with the order “shall not constitute a waiver of the Dead Man’s

Rule.” Order, 9/24/19. On October 15th, Appellant took this appeal.3 The

trial court issued an opinion, suggesting this Court quash this appeal because

its order was not a final order nor an appealable collateral order under

Pa.R.A.P. 313. Trial Ct. Op., 11/8/19, at 2-3.

       This Court issued a per curiam order directing Appellant to show cause

why this appeal should not be quashed, as a discovery order is generally

interlocutory and non-appealable.4 Order, 11/22/19, citing Robec, Inc. v.

Poul, 681 A.2d 809, 811 (Pa. Super. 1996) (absent unusual circumstances,

we will not review discovery orders prior to final judgment in the main action).

Appellant responded the trial court’s order was an appealable collateral order

because, inter alia, he is unable to comply with it without waiving his “defense”

under the Dead Man’s Act.          Appellant’s Response to Rule to Show Cause,

12/2/19, at 2. This Court discharged the rule to show cause, but advised

Appellant the issue would be referred to the merits panel.



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3The trial court did not require Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.

4This Court may raise the issue of jurisdiction sua sponte. Shearer v. Hafer,
177 A.3d 850, 855 (Pa. 2018).

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      Appellant presents two issues for our review:

      1. Does the September 24, 2019 Order constitute a collateral
      order pursuant to Pennsylvania Rule of Appellate Procedure 313?

      2. Did the trial court commit an error of law by entering the
      September 24, 2019 Order granting [Wife’s] Motion to Compel
      Discovery Responses where there will be irreparable harm after
      information discovered may compel waiver of Appellant’s defense
      under the Dead Man’s Act as a matter of law?

Appellant’s Brief at 5.

      In his first issue, Appellant avers the trial court’s discovery order is an

appealable collateral order under Pa.R.A.P. 313. In support, he contends: (1)

the present issue, of whether providing discovery would result in waiver of the

Dead Man’s Act, may be resolved separately from Wife’s underlying negligence

claim; (2) the right involved—Appellant’s waiver of his “defense” under the

Dead Man’s Act—is too important to be denied immediate review; and (3)

once Appellant provides the discovery, his claim—that such discovery is not

permitted under the Dead Man’s Act—would be irreparably lost. Appellant’s

Brief at 12-14. Appellant proceeds on the premise that Wife’s cause of action

lied against Decedent. Id. at 17 (“According to the Complaint, [Decedent]

owned and/or maintained the property where [Wife] purportedly fell. . . .

[D]ecedent’s failure to properly maintain her property prior to her death

constitutes the alleged tortious conduct directly at issue.”). He maintains he

“is an incompetent witness under the Dead Man’s Act as a matter of law[ and]

should not be compelled to participate in discovery and thereby waive his

defense[.]” Id. at 16. Appellant also reasons:

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      Both [Appellant and Wife], as husband and wife, stand to gain if
      [Appellant] is permitted to participate in the discovery. Moreover,
      [Appellant’s] testimony stands to be in direct conflict to
      [D]ecedent’s interest. Requiring [Appellant] to participate in
      discovery sets up exactly the fraudulent temptation that the Dead
      Man’s Rule seeks to prevent.

Id. at 17. Finally, Appellant disputes the trial court’s notation on the face of

the September 24, 2019, order, that his compliance would not constitute

waiver.   Appellant maintains, without citation to authority, that “it is

impossible for [him] to provide potentially adverse testimony and written

discovery on behalf of the estate without waiver as a matter of law.” Id. at

11 n.2.

      Wife responds, inter alia, that “the incident that gives rise to the

negligence and damages occurred after the death of [Decedent] when the

estate would [have] been responsible for the property.” Wife’s Brief at 11

(emphases added); see also id. at 12 (“[T]he incident . . . that relates to this

cause of action is based upon the condition of the sidewalk at the time of the

fall which was after [D]ecedent’s death . . . .     The prior condition of the

sidewalk is not relative [sic] to the negligence action[.]”).      Wife further

proclaims “this case does not involve statements, conversations or documents

with the deceased[.]” Id. at 11.

      Generally, “an appellate court’s jurisdiction extends only to review of

final orders.” Shearer, 177 A.3d at 855. “In Pennsylvania, final orders are

those which (1) dispose of all claims and all parties, (2) are explicitly defined




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as final orders by statute, or (3) are certified as final orders by the trial court

or other reviewing body. See Pa.R.A.P. 341.” Id. at 856.

      A narrow exception, however, is provided through the collateral order

doctrine, which has been set forth at Pa.R.A.P. 313. Shearer, 177 A.3d at

856, 858 (we construe collateral order doctrine narrowly). “[T]he question of

whether the collateral order doctrine has been met is jurisdictional in nature.

Therefore, we must independently consider whether the collateral order

doctrine has been satisfied.” Id. at 855. Rule 313 provides “[a]n appeal may

be taken as of right from a collateral order,” which is defined as “an order

separable from and collateral to the main cause of action where the right

involved is too important to be denied review and the question presented is

such that if review is postponed until final judgment in the case, the claim will

be irreparably lost.” Pa.R.A.P. 313(a)-(b). Under the second prong, “a right

is important if ‘the interests that would go unprotected without immediate

appeal are significant relative to the efficiency interests served by the final

order rule[ ]” and the right “implicate[s] interests ‘deeply rooted in public

policy [and] going beyond the particular litigation at hand.” Shearer, 177

A.3d at 858-59 (citations omitted).

      Preliminarily, we correct Appellant’s mistaken premise that the Dead

Man’s Act affords him a “defense.”      See Davis, 156 A.3d at 1268 (“[T]he

invocation of the protection based on the Dead Man’s Statute is not an

‘affirmative defense.’ [B]y definition, an ‘affirmative defense’ pertains to ‘a


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J-A08036-20


defendant’s assertion of facts and arguments that, if true, will defeat the

plaintiff’s . . . claim, even if all the allegations in the complaint are true.”).

Instead, the Dead Man’s Act is an evidentiary rule that acts to preclude

testimony. Id.

      We also reject the premise of Husband’s argument—that Wife’s cause

of action ever lied against Decedent personally. See Appellant’s Brief at 17

(“[D]ecedent’s failure to properly maintain her property prior to her death

constitutes the alleged tortious conduct[.]”)         Wife’s complaint named

Appellant, the administrator of the estate, as the defendant—not Decedent.

The complaint also averred the property was “owned by Defendant.” Wife’s

Complaint at 1. We construe these two averments together to mean, as Wife

avers on appeal, that the estate—not Decedent—owned the property at the

time of the fall. See Wife’s Brief at 11. This is not a case where a plaintiff’s

cause of action accrued while the property owner was alive, the owner

subsequently died, and the owner’s personal representative was substituted

as a party. Thus, Appellant cannot show: (1) Decedent was ever a “party” or

“had an actual right or interest in the matter;” or (2) that Decedent’s right

“passed” to Appellant. See 42 Pa.C.S. § 5930; Larkin, 580 A.2d at 1152.

Instead, both the underlying cause of action and the complaint were made

against the estate. See id. Accordingly, we disagree with Appellant that the

Dead Man’s Act applies.




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       Furthermore, we reject Appellant’s implied position that the Dead Man’s

Act precludes or shields him from providing any discovery or testimony in this

case.5 First, the Act precludes testimony about “any matter which occurred

before the decedent’s death.”            Schroeder, 861 A.2d at 887 (emphasis

added). Thus, the Act would not preclude Appellant, or any witness, from

testifying about events arising after Decedent’s death.6

       Second, in attempting to invoke the Dead Man’s Act to shield himself

from Wife’s discovery and deposition request, Appellant ignores the policy

behind the Dead Man’s Act—“that the decedent’s representative is in no

position to rebut the assertions presented by the adverse party, and thus,

it would be unfair to permit a surviving adverse party to give testimony

that is favorable to himself and unfavorable to the decedent’s interest.” See

Davis, 156 A.3d at 1268 (emphases added). We reject Appellant’s argument

that “[a]ny discovery” he provides “relating to the possible negligent

condition of his mother’s property . . . is improper as it theoretically equates

to an adverse interest to her estate.” See Appellant’s Brief at 18 (emphasis

added). Instead, we reiterate that “the interest of the [deposed] witness—

not simply the testimony—must be adverse.”           Larkin, 580 A.2d at 1152.



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5 As stated above, Wife’s motion to compel discovery averred that Appellant
refused to respond to any discovery request pursuant to the Dead Man’s Act.

6 Indeed, Wife avers that “this case does not involve statements,
conversations or documents with the deceased.” Wife’s Brief at 11.

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Here, Appellant has not established that in his capacity as the administrator

of Decedent’s estate, his interests are adverse to those of Decedent. See id.

To the extent Appellant anticipates any of his testimony would be construed

to be contrary to the estate’s interests, we note that every deposition (and

cross-examination) of a defendant is intended to elicit some testimony that

could be used against the defendant’s position.

       In light of the foregoing, we conclude Appellant has not established the

second prong of the collateral order doctrine—that he has a right too important

to be denied review. See Pa.R.A.P. 313(b); Shearer, 177 A.3d at 853, 858-

59. Consequently, we determine Appellant’s appeal is improperly taken from

an unappealable order, and we quash this appeal.7


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7 Although we determine this Court lacks jurisdiction to hear this appeal, we
briefly address Appellant’s challenge to the trial court’s notation, on the face
of the September 24, 2019, discovery order, that compliance with the order
will not waive his claims under the Dead Man’s Act. See Order, 9/24/19;
Appellant’s Brief at 11 n.2. We note that generally,

       An objection to interrogatories or other discovery under . . . or an
       application for protective order . . . must be filed before the party
       seeking discovery has filed a motion for sanctions or other motion
       seeking to enforce compliance with the discovery request or else
       the objection or the grounds upon which the protective order is
       sought will be waived.

National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053, 1059
(Pa.Cmwlth. 2001). Furthermore, with respect to the Dead Man’s Act, our
Supreme Court has addressed waiver in the context of precluding an adverse
party’s testimony: “[A] decedent’s representative waives the Act by taking the
deposition of or requiring answers to interrogatories from an adverse party,



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       Appeal quashed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




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whether or not he places the results of such discovery on the record.”
Schroeder, 861 A.2d at 888 (citation omitted and emphasis added).

       However, we have not discovered any authority addressing the
particular issue presented here—whether a trial court may require a personal
representative to engage in discovery while providing a non-waiver of the
Dead Man’s Act. Nevertheless, we reiterate that where an adverse witness
testifies on direct examination only with respect to events that occurred after
the decedent’s death, they do not violate the Dead Man’s Act. See Estate of
Kofsky, 409 A.2d 1358, 1369 (Pa. 1979). The rule and its application belong
solely to the personal representative and the trial court can neither assert or
waive the rule on behalf of the personal representative. The effect of the
failure to assert or waiver of the rule depends upon the circumstances upon
which it is either asserted or waived. It cannot be stated more emphatically
that the Dead Man’s Act does not apply to events which occur after the
decedent’s death.


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