I. Charles & Rosalie FELDMAN, H/W, Appellees v. Donald E. IDE, Appellant.
Superior Court of Pennsylvania
January 9, 2007
915 A.2d 1208
TAMILIA, J.
Argued Oct. 18, 2006.
¶ 8 Furthermore, as we explained in In re Estate of Dilbon, 456 Pa.Super. 490, 690 A.2d 1216 (1997),
Although the existence of [a claim against a decedent‘s estate] establishes a financial interest in the estate, because the claim is unliquidated, it does not constitute a debt. “[T]he plaintiff in an action ex delicto against the estate of a decedent is not a creditor until such status is established by obtaining a judgment on a verdict rendered by a jury in a court of competent jurisdiction.”
Id. at 494, 690 A.2d at 1218 (citations omitted). As Appellants were not creditors of Brendan‘s estate,
¶ 9 Moreover, to the extent Appellants argue that Jona Naughton was substituted as the personal representative of Brendan‘s estate, and that her failure to previously object to such substitution constitutes a waiver of any challenge thereto, we note that the court order allowing the substitution was dated July 19, 1999, which was outside of the statute of limitations. More importantly, however, as we explained in Valentin v. Cartegena, 375 Pa.Super. 493, 544 A.2d 1028 (1988), “because a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person‘s estate is improper,” and an attempt to substitute as a party the personal representative of a decedent‘s estate is invalid and of no effect because there is no pending action. Id. at 495, 544 A.2d at 1029; see also Custren v. Curtis, 392 Pa.Super. 394, 572 A.2d 1290 (1990). Rather, the proper course of action is to file a new action against the decedent‘s estate or against the personal representative in his or her capacity as personal representative of the decedent‘s estate. Valentin, 375 Pa.Super. at 496, 544 A.2d at 1029. Appellants failed to do this.
¶ 10 Accordingly, for all of the foregoing reasons, we hold that the trial court properly granted Appellees’ motion for summary judgment on the grounds that the statute of limitations on Appellants’ claim had expired, and thus affirm the trial court‘s order.
¶ 11 Order AFFIRMED.
Kelly J. Lenahan, Scranton, for appellees.
Robert E. Kelly, Jr., Harrisburg, for Erie Ins., Amicus Curiae.
BEFORE: MUSMANNO, TODD and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
¶ 1 Appellant Donald Ide appeals from the June 21, 2005 Order overruling his objections to Plaintiff‘s Request for Production of Documents and Things.
¶ 2 On September 20, 2000, appellant, who allegedly was operating his vehicle in a negligent manner, struck appellee Charles Feldman‘s vehicle from behind.
¶ 3 Appellant responded to these requests by filing objections and refusing to produce tax forms from the requested outside sources. Id. at Exb. B. In so doing, appellant asserted appellees’ requests were unduly burdensome and were not reasonably calculated to lead to the discovery of admissible evidence. See
¶ 4 The trial court overruled appellant‘s objections and ordered appellant to provide answers to the request within 30 days or suffer sanctions. Record, Order of June 21, 2005. After appellant perfected a timely appeal with this Court, the trial court issued an Opinion expounding upon its rationale for denying appellant‘s objections and indicating its belief appellant‘s appeal was interlocutory and, hence, should be quashed. Trial Court Opinion at 3. The trial court further noted that even if this Court finds the Order is appealable, the Order was appropriate pursuant to this Court‘s adjudication in J.S. v. Whetzel (Appeal of Eagle), 860 A.2d 1112 (Pa.Super.2004).
¶ 5 Following the filing of the parties’ briefs and just six weeks prior to oral argument in this matter, our Supreme Court issued its decision in Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482 (2006), which provides this Court with substantial guidance in resolving the matter sub judice.
¶ 6 Before considering this case on its merits, however, we must determine whether the trial court‘s Order is collateral, such that appeal may be taken. See
¶ 7 After careful review, we conclude the trial court‘s Order is collateral and, consequently, ripe for appeal. The disclosure of Dr. Katz‘s tax returns is a matter wholly separable from the underlying negligence and loss of consortium actions. See Cooper, supra at 485 n. 3. In addition, the underlying privacy rights implicate matters of public policy that extend beyond the current controversy. Id. In that appellant, and not Dr. Katz, was the party served with the request, not only are Dr. Katz‘s privacy rights implicated by the trial court‘s Order, appellant‘s right to choose the means by which to defend himself is also implicated. See note 2, infra. These rights have obvious implications extending beyond the confines of this case.
¶ 8 Finally, appellant must be heard or else face a disrupting situation: either Dr. Katz agrees to supply the requested documents to appellant, in which case Dr. Katz‘s privacy rights are violated, or accept Dr. Katz‘s decision to withdraw as an expert, thereby crippling appellant‘s ability to assert an effective defense.
¶ 9 Turning to the merits of the trial court‘s Order, we find the trial court erred as a matter of law in overruling appellant‘s objections. Our review over the trial court‘s interpretation of the law surrounding disclosures such as the one at issue is plenary. Cooper, supra at 488. We also examine the trial court‘s factual conclusions to determine whether there has been an abuse of discretion. Id.3
¶ 10 Our Supreme Court in Cooper succinctly summarized the situation as follows.
Therefore, we believe that the appropriate, threshold showing to establish cause for supplemental discovery related to potential favoritism of a nonparty expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives....
...
In keeping with the idea that the discovery along these lines should be of the least burdensome and intrusive kind possible, we believe that the appropriate entry point, upon the showing of cause, is a deposition by written interrogatories under
Rule of Civil Procedure 4004 [Procedure on Depositions by Written Interrogatories] . Through this vehicle, and subject to the trial court‘s exercise of its sound discretion, the proponent of the discovery may be permitted to inquire as to the following: the approximate amount of compensation received and expected in the pending case; the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness‘s overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services. While we recognize that some jurisdictions have limited this form of discovery to exclude the income category we believe that this limited aspect of income information is within the fair scope of relevance on the question of potential favoritism.
Cooper, supra at 494-495 (internal and other citations omitted) accord,
¶ 11 Although the record discloses that appellees sent interrogatories to Dr. Katz, there is no evidence of record showing whether the interrogatories were answered and, if they were, in what fashion. See Record, No. 6, Certificate of Service. Consequently, we are unable to determine whether appellants were able to demonstrate a “significant pattern of compensation” that would give rise to the right to seek further discovery of documents. Cooper, supra at 494. We do note, however, that even if the trial court determines appellants are able to make the requisite showing, the Order granting appellees’ request remains overly broad. See Cooper, supra at 496 (“In all likelihood, however, in such a case as this one, the written interrogatories will produce sufficient information to support adequate trial preparation.“). For even if appellees have succeeded, or in the future, are able to demonstrate a significant pattern of compensation but are simultaneously unable to discover all of the information sought through
¶ 12 Order vacated and matter remanded for further proceedings consistent with this Opinion.
¶ 13 Jurisdiction relinquished.
¶ 14 Dissenting Opinion by MUSMANNO, J.
DISSENTING OPINION BY MUSMANNO, J.:
¶ 1 I respectfully dissent from the Opinion of my learned colleague. The majority holds that the Order on appeal in this case
¶ 2 Generally, discovery orders are considered interlocutory and unappealable. See Makarov v. Lukenda, 856 A.2d 163, 163 (Pa.Super.2004); Robec, Inc. v. Poul, 452 Pa.Super. 264, 681 A.2d 809, 811 (1996); Joyce & Associates v. Pivirotto, 358 Pa.Super. 50, 516 A.2d 763, 764 (1986); McManus v. Chubb Group of Ins. Companies, 342 Pa.Super. 405, 493 A.2d 84, 87 (1985). However, under the collateral order doctrine, an interlocutory order may be appealable if the order “is 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.”
¶ 3 The majority has concluded that the trial court‘s Order overruling defendant‘s objections to the plaintiffs’ request for production is appealable pursuant to the collateral order doctrine. I cannot agree with the majority‘s conclusion.
¶ 4 The instant case is distinguishable from Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999), cited by the majority. In the instant case, there is no issue of privilege as was present in the Schwartz case. The discovery request in Schwartz involved disclosure of medical records of persons not involved in the litigation as well as the issue of executive privilege. In the instant case, the discovery request involves disclosure of tax returns of the defendant‘s expert to determine his potential bias. In addition, resolution of the issue in this case does not impact on individuals other than those involved in the litigation, as was the case with the investigative files of the Bureau in Schwartz. Thus, I find no rights at issue in this case which are significant enough to overcome adherence to the final judgment rule. Accordingly, I conclude that the trial court correctly opined that its Order overruling the defendant‘s objections to plaintiff‘s request for production was not an appealable Order. I would therefore quash this appeal.4