156 A.3d 1261
Pa. Super. Ct.2017Background
- On May 25, 2014, Davis (driver) and Gibson (passenger) were in a vehicle that collided with a vehicle driven by Byron L. Wright (decedent); Wright later died and his son, Byron W. Wright, Jr., is administrator of the estate (Appellee).
- Appellants filed a negligence complaint; Appellee answered, pled new matter, and asserted a counterclaim blaming Davis for the collision.
- Appellee moved for summary judgment arguing the Dead Man’s Statute (42 Pa.C.S. § 5930) prevents Appellants from testifying about events before the decedent’s death, leaving them unable to prove their case.
- Appellants argued the estate waived the Dead Man’s Statute by failing to plead it in the first responsive pleading and by participating in discovery (deposition of police officer O’Neill); they also relied on third‑party evidence (Officer O’Neill, possible witness Andrew Smith) to create issues of fact.
- The trial court granted summary judgment for the estate; Superior Court affirmed, holding (1) the estate did not waive the Dead Man’s Statute and (2) without Appellants’ barred testimony there was no competent non‑speculative evidence creating a prima facie negligence claim against the decedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether estate waived Dead Man’s Statute by not raising it in first responsive pleading | Hughes requires timely objection; failure to raise in first responsive pleading waives protection | No rule requires raising Dead Man’s Statute in first responsive pleading; the statute is not an "affirmative defense" under Pa.R.C.P. 1030 | No waiver; failure to plead in first responsive pleading did not waive the statute |
| Whether estate waived Dead Man’s Statute by participating in discovery (deposing Officer O’Neill) | Cross‑examining/deposing an investigator constitutes participation that waives the statute | Waiver occurs only when estate takes discovery from an adverse party (e.g., deposes the adverse party or propounds interrogatories); Officer O’Neill is a neutral third party, not an adverse party | No waiver; deposing a non‑adverse police officer does not waive the statute |
| Whether other evidence (Officer O’Neill’s testimony, documents, or independent witness) creates a genuine issue of fact | Officer O’Neill’s deposition and police report and potential witness Smith provide independent evidence of decedent’s fault | Officer O’Neill’s testimony was speculative, lacked independent recollection, and the police report is inadmissible hearsay under the Motor Vehicle Code; Smith’s testimony was not proffered | No genuine issue: third‑party testimony was speculative or inadmissible; Appellants failed to present admissible evidence to establish a prima facie negligence claim |
| Whether summary judgment was proper given the Dead Man’s Statute and the record evidence | Even if statute bars their testimony, other competent evidence establishes negligence | Without Appellants’ testimony, record lacks competent, non‑speculative evidence of breach; summary judgment warranted | Summary judgment affirmed for the estate |
Key Cases Cited
- Krauss v. Trane U.S. Inc., 104 A.3d 556 (Pa. Super. 2014) (summary judgment standard and nonmoving party burden)
- Schroeder v. Jaquiss, 861 A.2d 885 (Pa. 2004) (deposition/interrogatory of adverse party waives Dead Man’s Statute)
- Hughes v. Bailey, 195 A.2d 281 (Pa. Super. 1963) (objection to competency should be timely when testimony has already been examined and cross‑examined)
- Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012) (definition of an affirmative defense)
- Estate of Kofsky, 409 A.2d 1358 (Pa. 1979) (purpose and application of Dead Man’s Statute)
- Weschler v. Carroll, 578 A.2d 13 (Pa. Super. 1990) (noncovered testimony may be supplemented by other competent evidence of fault)