Henry MCNEIL, Jr., Appellant v. Barbara McNeil JORDAN and Henry A. Jordan, Appellees.
Supreme Court of Pennsylvania.
March 21, 2006.
Argued April 15, 2004.
894 A.2d 1260 | 413
Clifford Alan Rieders, for PA Trial Lawyers Association.
Dara Beth Less, William T. Hangley, Philadelphia, for Jordan et al.
Before: CAPPY, C.J., CASTILLE, NIGRO, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice BAER.
Henry S. McNeil, Jr. (Henry Jr.), appeals the order of the Superior Court affirming the order of the Court of Common Pleas of Montgomery County, which dismissed his action alleging intentional interference with testamentary expectancy. The trial court dismissed the action with prejudice when Henry Jr. declined the court‘s invitation to file an amended complaint after it denied his request for pre-complaint discovery. In refusing to amend his complaint, Henry Jr. made clear that, given the trial court‘s prior ruling dismissing his complaint without prejudice, and absent pre-complaint discovery, he would be unable to survive a demurrer. Thus, he sought to challenge the trial court‘s refusal to permit pre-complaint discovery through the appellate process. We granted allocatur to clarify the parameters of pre-complaint discovery in Pennsylvania. Based upon the reasoning stated in Parts I, II, III, and V, which command a majority of the justices participating in this case, we reverse the order of the
I.
Henry S. McNeil, Sr. (Henry Sr.), and Lois Fernley McNeil had four children, all now grown: Appellant Henry Jr.; Appellee Barbara McNeil Jordan (Barbara), whо is married to Appellee Henry A. Jordan (collectively, the Jordans); and non-parties Marjorie McNeil Findlay and Robert Douglas McNeil. Henry Sr. was the president of McNeil Laboratories, Inc., the maker of Tylenol and other medicines. In 1959, Johnson and Johnson purchased McNeil Laboratories in exchange for stock worth approximately $33 million, enriching Henry Sr. and Lois, each of whom proceeded to create identical trusts for each of their four children.
For reasons not of record, Henry Jr.‘s relationships with his father and mother deteriorated during the 1970s, causing a prolonged, if not permanent, estrangement. Consistent therewith, in his 1979 will, Henry Sr. made substantial bequests to Barbara, Marjorie, and Robert, but excluded Henry Jr. Henry Sr. died in 1983 without having reconciled with Henry Jr.1
The bulk of Henry Sr.‘s estate funded a marital trust for Lois‘s lifetime benefit. Henry Sr. provided that upon Lois‘s death the proceeds of the marital trust would be used to create separate trusts for the couple‘s children and their families, exclusive of Henry Jr. Henry Sr., however, gave Lois a general power of appointment permitting her to modify this testamentary scheme.2
Based on these conflicting factual premises, Henry Jr. asserts that prior to Lois‘s death, she expressed an intent to exercise her general power of appointment to equalize his and his siblings’ inheritances, but, notwithstanding this expression of intent, Lois did not so act because of the Jordans’ undue influence. Reading these contentions as consistently as possible, Henry Jr. appears to posit that the Jordans took all measures to discourage his relationship with Lois; they failed to the extent that Henry Jr. was able to restore a full relationship with her, but succeeded inasmuch as Lois never modified her estate plan to conform to her alleged intent to restore Henry Jr. to co-equal status with his siblings.
In December 1989, sometime after Henry Jr. claims to have reestablished a close relationship with her, Lois executed a new will. Lois then executed codicils thereto on March 21, 1990, December 8, 1992, and September 17, 1997, before passing away in 1998. Lois died with a personal estate of approximately $10 million, and the right, pursuant to her general power of appointment, to alter Henry Sr.‘s direction that the $625 million remaining in the marital trust be distributed equally to all the couple‘s children except Henry Jr.
Lois exercised her general power of appointment to leave specific bequests to dozens of friends, employees, and charities. She also used the general power to make equal, but limited, specific distributions to each of the children‘s trusts, including Henry Jr.‘s. She then made specific bequests to
Notwithstanding these various specific bequests and devises, a substantial amount of the $625 million in the marital trust remained, and Lois permitted this to pass through Henry Sr.‘s residuary clause, resulting in equal shares passing to Henry Jr.‘s three siblings, but in his receipt of none of this money. It also is noteworthy that Lois named Henry Jr.‘s three siblings as co-executors but excluded Henry Jr. from this role.
Henry Jr. did not contest the will and its codicils. Nevertheless, he did obtain permission from his siblings in their capacities as co-executors to review a small portion of his mother‘s estate documents. Henry Jr. also hired private investigators to find evidence that Lois intended to change her will to his benefit. Ultimately, on March 9, 1999, Henry Jr. filed a Writ of Summons against the Jordans in their individual capacities in the Montgomery County Court of Common Pleas. The Jordans retained counsel, and on April 14, 1999, filed a Praecipe for a Rule requiring Henry Jr. to file a complaint within twenty days.
Henry Jr. filed a complaint on May 4, 1999, asserting a claim for the tort of intentional interference with testamentary expectancy against the Jordans with respect to Lois‘s estate. The complaint alleged that Lois intended to distribute her probate assets and, through her general power of appointment, the balance of Henry Sr.‘s marital trust equally among her children, and took affirmative steps to implement this plan, but was thwarted by the Jordans’ undue influence over her.
The Jordans filed preliminary objections to the complaint including a demurrer asserting that Henry Jr. failed to aver that Lois intended to change her will to provide a described benefit to Henry Jr., the first element of a claim for tortious interference with testamentary expectancy.3 The trial court
Following dismissal of his original complaint without prejudice, Henry Jr. sought discovery with the averred expectation that it would enable him to prepare an amended complaint stating a cause of action. Henry Jr. sought from Lois‘s lawyers her estate planning files and all documents relating to her testamentary intent generated from 1983 to 1998; all documents referring or relating to Henry Jr.; and all billing records for services rendered with respect to Lois‘s estate planning during this fifteen-year period. The Jordans opposed Henry Jr.‘s discovery requests, contending that they amounted to a “fishing expedition.”
In an attеmpt to broker a compromise, the court proposed to grant Henry Jr.‘s lawyers unlimited access to Lois‘s estate planning files to search for any indication that Lois ever expressed an intent to equalize Henry Jr.‘s share. This review was to be for the attorneys only, and the information revealed would remain confidential. Prior to allowing any documents to be copied or used in the litigation, the court would determine whether the material was relevant to Lois‘s intent regarding Henry Jr. Henry Jr. rejected this compromise, choosing instead to file an amended motion for pre-
Henry Jr. argued that he sought discovery in good faith and with a reasonable factual basis, and proffered the following underlying contentions: (1) in the mid-1990s, Henry Jr. spoke with a lawyer who had previously represented Lois in estate matters and, as a result of that conversation, Henry Jr. understood that he would be treated equally; (2) Henry Jr. was told in the mid-1990s that one of his siblings encouraged Lois to treat him equally; and (3) in the 1990s someone told Henry Jr. that one of his siblings had told someone else that Lois had included Henry Jr. in her will for “his portion” of the family wealth.
The trial court found nothing in the new factual averments to support the allegation that Lois expressed an intention to equalize Henry Jr.‘s inheritance with that of his siblings, characterizing his averments in support of his discovery request as “vague.” The court reasoned that it would be inappropriate to permit Henry Jr. to discover otherwise confidential estate planning documents “without a reasonable basis” to support his claim. Accordingly, on Januаry 8, 2002, the court denied Henry Jr.‘s motion for pre-complaint discovery and offered Henry Jr. thirty days to file an amended complaint. Henry Jr., however, advised the court that he would not amend his complaint absent the requested pre-complaint discovery. Accordingly, by order dated January 23, 2002, the court dismissed Henry Jr.‘s action with prejudice.
Henry Jr. timely appealed to the Superior Court, arguing that the trial court erred in failing to permit the pre-complaint discovery he required to file a legally sufficient complaint. In a published opinion, the Superior Court reviewed seven common pleas court decisions addressing pre-complaint discovery. See McNeil v. Jordan, 814 A.2d 234, 243-45 (Pa.Super.2002) (discussing, inter alia, Vartan Enters., Inc., v. Susquehanna Township, 41 Pa. D. & C.4th 534 (C.P. Dauphin 1998); Potts v. Consol. Rail Corp, 37 Pa. D. & C.4th 196 (C.P. Allegheny 1998); Anderson v. PennDOT, 47 Pa. D. & C.3d 429 (C.P. Cumberland 1987); Wable v. Watkins, 47 Pa. D. & C.3d 485 (C.P. Somerset 1986); Hall v. Baltic, 12 Pa. D. & C.3d 647 (C.P. Beaver 1978); Crown Mktg. Equip. v. Provident Nat‘l Bank, 3 Pa. D. & C.3d 364 (C.P.Phila.1977); In re Evans Estate, 15 Pa. D. & C.2d 619 (C.P. Luzerne 1958)). The Superior Court concluded that it was “more persuaded by the case law setting reasonable limits on pre-complaint discovery than the case law permitting a more liberal allowance of [such] discovery.” Id. at 245. Specifically, the court held that pre-complaint discovery is permissible only if the plaintiff has set forth a prima facie case, but, nevertheless, cannot prepare and file a complaint without discovery. Noting that the first element of the tort of intentional interference with an inheritance is that the testator indicated an intent to change her will to provide a described benefit to the plaintiff, Marshall, 58 A. at 142, the court found that Henry Jr. failed to allege any reasonable basis upon which one could conclude that Lois had such intent. Thus, the court found that Henry Jr. failed to set forth a prima facie case. McNeil, 814 A.2d at 246. Accordingly, the Superior Court concluded that to grant Henry Jr.‘s discovery request would amount to authorizing the prohibited “fishing expedition.” Id. Accordingly, the Superior Court affirmed the trial court‘s dismissal with prejudice of Henry Jr.‘s complaint. Henry Jr. filed a petition for allocatur challenging only the Superior Court‘s refusal to overturn the trial court‘s ruling denying pre-complaint discovery. We granted allocatur to consider this issue.
II.
Before reaching the merits of the pre-complaint discovery question,4 however, we must consider two issues raised by the Jordans contesting our jurisdiction. First, the Jordans contend that Henry Jr.‘s argument concerning pre-complaint discovery has not been preserved properly to permit this Court‘s review. Alternatively, the Jordans argue that, even were we to reverse and remand for pre-complaint discovery,
As described above, we are faced with the consequence of a series of three interrelated orders. First, the trial court granted the Jordans’ demurrer and dismissed Henry Jr.‘s complaint without prejudice to file an amended complaint. Thereafter, the court denied Henry Jr.‘s motion seeking pre-complaint discovery. Following denial of his discovery motion, the trial court, with its third order, dismissed Henry Jr.‘s complaint with prejudice providing as follows:
AND NOW, this 23rd day of January, 2002, plaintiff, Henry S. McNeil, Jr., has advised the Court and opposing counsel that he will not amend his complaint in the absence of discovery sought by the amended motion for leave to conduct discovery in aid of preparation of amended complaint. Therefore, this action is dismissed with prejudice.
Tr. Ct. Order, 1/23/02.
Henry Jr. then timely appealed the trial court‘s dismissal with prejudice of his complaint to the Superior Court, before which he raised two questions. The first challenged the trial court‘s denial of pre-complaint discovery; the second argued that Henry Jr.‘s unamended complaint set forth a cause of action and thus the trial court dismissed it in error. The Superior Court decided that the trial court acted within its discretion in denying pre-complaint discovery and was correct as a matter of law in dismissing Henry Jr.‘s complaint for failure to state a cause of action. Henry, Jr. then timely sought allocatur from the Superior Court‘s order affirming the trial court‘s order dismissing Henry Jr.‘s complaint with prejudice raising as his sole specific contention of error the Superior Court‘s holding disallowing pre-complaint discovery.
The Jordans initially assert that Henry Jr.‘s appeal to the Superior Court did not encompass pre-complaint discovery, and therefore waived the issue. Their somewhat convoluted argument begins from the premise that the litigation over pre-
The language of the trial court‘s order, as quoted above, clearly reflects the centrality of the pre-complaint discovery issue to the trial court‘s decision to dismiss. Further, we note that “a notice of appeal filed from the entry of judgment will be viewed as drawing into question any prior non-final orders that produced the judgment.” K.H. v. J.R., 573 Pa. 481, 826 A.2d 863, 871 (2003) (emphasis added); see id. at 870 (citing 16A WRIGHT, MILLER & COOPER, 16A FEDERAL PRACTICE AND PROCEDURE § 3949.4 (3d ed.1999)) (finding in Pennsylvania law the equivalent of the federal “‘merger rule,’ which treats any prior interlocutory orders as merging into the final judgment“); accord Elfman Motors, Inc., v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir.1977) (citing 9 MOORE‘S FEDERAL PRACTICE 755 (2d ed.1975)); Morningstar v. Hallett, 858 A.2d 125, 126 & n. 1 (Pa.Super.2004) (applying K.H.). The policy served by this aspect of Pennsylvania practice is manifest.
To endorse the Jordans’ view on this issue would require us to disregard the extensive litigation between the dismissal of
This leaves us to consider the Jordans’ alternative argument that, even should we find jurisdiction over this aspect of the discovery dispute, we nevertheless cannot review this case because res judicata and the statute of limitations
Specifically, the Jordans argue that because Henry Jr. sought allocatur only on the discovery issue and not the sufficiency of the complaint, he waived his contention that his complaint was improperly dismissed. Thus, the Jordans posit that Henry Jr., having sued them, lost, and failing to appeal that loss, now is barred by res judicata from relitigating the same cause of action. Similarly, the Jordans argue that any new suit against them (i.e., one asserting new claims based on the same facts) would be barred by the applicable two-year the statute of limitations.
Our foregoing discussion amply demonstrates that this appeal arises from the dismissal with prejudice of Henry Jr.‘s appeal, which in turn hinged, by the trial court‘s explicit observation and any fair reading of the record, on the trial court‘s refusal to permit Henry Jr. to pursue pre-complaint discovery. Thus, pursuant to K.H., the trial court‘s denial of Henry Jr.‘s motion seeking pre-complaint discovery fairly was encompassed in the trial court‘s subsequent order dismissing his complaint with prejudice. See K.H., 826 A.2d at 871. Accordingly, res judicata does not bar this Court‘s jurisdiction over this appeal. Moreover, under these circumstances, the relevant date of filing remains the date on which Henry Jr. filed his first complaint, and the statute of limitations does not moot the issue he raises before this Court. See Connor v. Allegheny Gen. Hosp., 501 Pa. 306, 461 A.2d 600, 602 (1983) (“[I]f the proposed amendment [to the complaint] does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.“). Accordingly, we proceed to consider the appeal on its merits.
III.
Generally, on review of an order concerning discovery, an appellate court applies an abuse of discretion standard.
Henry Jr. asserts that the Superior Court‘s decision to permit pre-complaint discovery only when a plaintiff has shown a prima facie case announces an erroneous standard. Henry Jr. aptly points out that if a plaintiff can make a prima facie showing, by definition, he can survive a demurrer and thus does not require pre-complaint discovery. Conversely, if a plaintiff cannot make out a prima facie case, he requires pre-complaint discovery to avoid dismissal of his cause of action. Thus, such a plaintiff finds himself on the horns of an intractable dilemma: he must show a prima facie case to take pre-complaint discovery, yet he needs pre-complaint discovery to show a prima facie case. Henry Jr. argues that such a standard cannot be correct.
The Jordans respond that Henry Jr. is on a “fishing expedition” in that he has set forth no objective basis to support his bald contention of injury, and to permit him discovery under the facts of this case would create a world in which a litigant, without any reasonable good-faith basis, can subject parties and non-parties alike to unjustifiable, burdensome discovery. Accordingly, the Jordans maintain that the Superior Court appropriately ruled that pre-complaint discovery is prohibited until Henry Jr. establishes a prima facie case.
It is clear that the Pennsylvania Rules of Civil Procedure contemplate pre-complaint discovery.
Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.
Thus, because a complaint is a pleading, see
This Court has yet to address directly the parameters of pre-complaint discovery.10 Accordingly, we begin our analysis
In Lutsko v. Sawka, 27 Pa. D. & C.2d 246 (C.P. Lehigh 1962), the court faced a trespass action initiated through writ of summons followed closely by a set of interrogatories directed to defendant and defendant‘s objections thereto. The court noted that it was handicapped in understanding and appraising plaintiff‘s case by the lack of a complaint, and it was
In Pustilnik v. SEPTA, 45 Pa. D. & C.2d 799 (C.P.Phila.1968), the court began its analysis by citing the same section of
In Crown Marketing Equipment Co. v. Provident National Bank, 3 Pa. D. & C.3d 364 (C.P.Phila.1977), defendant sought pre-complaint discovery incident to joining and filing a third-party сomplaint against an additional defendant. One of Crown‘s employees had embezzled money from checking accounts in Provident Bank. Crown sued the bank asserting that it was liable for failing to interdict the embezzlement. The bank sought to join its accountants as third-party defendants. The bank filed a writ of summons against the accountants and a request for pre-third-party-complaint discovery. The accountants moved for a protective order. The trial court adopted the Pustilnik test prohibiting pre-complaint discovery unless a complaint cannot be drafted without it. Because the
The above cases were decided prior to the 1978 amendments to the discovery rules. Although not permitting the requested discovery on the facts before them, the Rosenbaum and Lutsko courts held that pre-complaint discovery should be broadly permitted and that the test should focus on whether the discovery is intended to aid substantially in the preparation of the pleadings, or whether the discovery request reflects an open-ended effort to find a cause of action where none is manifest. Pustilnik and Crown Marketing represented a subtle but material shift in the analysis in narrowing the scope of permissible pre-complaint discovery and permitting it only when a complaint cannot be filed without it.
In 1978 the Rules of Civil Procedure regarding discovery were amended.12 The most noteworthy change a propos of the instant question involved the elimination of the “substantially aid” qualification to pre-complaint discovery. In practice, however, this textual change made no apparent difference to the courts considering requests for pre-complaint discovery.
The first post-amendment case on point was Wable v. Watkins, 47 Pa. D. & C.3d 485 (C.P. Somerset 1986). As in Crown Marketing, the case involved a defendant seeking to join a third-party defendant. The defendant initiated joinder through a writ of summons and a notice to the proposed additional defendant seeking his deposition. The third-party defendant responded with a motion for protective order. The court first noted that the 1978 amendments to the rules eliminated the requirement that pre-complaint discovery “substantially aid” in the preparation of the pleadings. It then turned to the new
The court then considered the third-party defendant‘s contention that defendant sought discovery to find rather than substantiate a cause of action. Acknowledging the amendments to the rules, the court nevertheless found that their intent remained consistent with prior law, and accordingly applied the test enunciated by Rosenbaum and Lutsko requiring the court to weight the intrusion upon the defendant against the necessity of the discovery to plaintiff‘s ability to prepare a legally sufficient complaint. Thus, in Wable, the common pleas court expressly approved the Rosenbaum and Lutsko approach as well as the different but not inconsistent approach set forth in Pustilnik and Crown Marketing. Once again, the court denied pre-complaint discovery.
This trend continued. In Anderson v. PennDOT, 47 Pa. D. & C.3d 429 (C.P. Cumberland 1987), plaintiff suffered a motorcycle accident and filed a writ of summons and a request for pre-complaint discovery. All defendants save one objected to the pre-complaint discovery. The trial court noted, with an excess of caution, that “[t]here is some authority to support the allowance of pre-complaint discovery in certain limited and controlled situations.” Id. at 431 (citing GOODRICH-AMRAM 2d § 4001(c):3). As in Wable, the court turned to Pustilnik and Crown Marketing for the proposition that pre-complaint discovery should be carefully constrained and permitted only when a complaint cannot be drafted without it. The court held that plaintiff could draft a complaint with the facts in his possession, and disallowed pre-complaint discovery.
In 1998, in Potts v. Consolidated Rail Corp., 37 Pa. D. & C.4th 196 (C.P. Allegheny 1998), the trial court, by the Honorable R. Stanton Wettick, Jr., addressed the scope of pre-complaint discovery in a case involving allegations of breach of
contract, fraud, and deceit. Plaintiff commenced his action by writ of summons and submitted separate interrogatories to each defendant. Defendants responded with motions for protective orders asserting that the pre-complaint discovery requests sought information beyond that needed to prepare a complaint. The court opined persuasively that the interests of justice are best served by a policy that limits the scope of pre-complaint discovery. In support, it noted that defendants ideally should have the opportunity to test a complaint before submitting to discovery. Thus, when possible, discovery requests should follow pleadings to facilitate the narrowing of issues and concomitant narrowing of discovery. The court echoed Wable that discovery is limited to relevant matters and noted that, absent a complaint, neither a defendant nor a court is in a position to assess relevancy. Accordingly, the court adopted the Pustilnik and Crown Marketing test permitting narrow pre-complaint discovery only when necessary to the drafting of a legally sufficient complaint, and denied plaintiff‘s pre-complaint discovery request.
Finally, we turn to Evans Estate, 15 Pa. D. & C.2d 619 (C.P. Luzerne 1958). Notwithstanding its age, we examine this case last because the Superior Court in the case at bar relied upon it in denying Henry Jr.‘s pre-complaint discovery request under a test even more demanding than those discussed above. In Evans Estate, disappointed heirs challenged the probate of a will, contending that its proponents had subjected the decedent to undue influence and duress.14 The heirs sought pre-complaint discovery, arguing that it was required before they could prepare their pleadings. Interestingly, they went further and argued that, within the confines of this will contest litigation, they were entitled to go on a “fishing expedition.” Id. at 626. The court rejected these assertions, and instead held that, once a will is probated, one challenging it must allege particular grounds and buttress such grounds with specific facts. Id. The court then said that it was
We agree with Henry Jr. that the Superior Court‘s requirement that a pleader must establish a prima facie case prior to obtaining pre-complaint discovery is too strict. Interestingly, as commonplace and oft-used as is the term ”prima facie case,” it is not well defined under Pennsylvania law. In the criminal context, the Commonwealth establishes a prima facie case when “it produces evidence that if accepted as true, would warrant the trial judge to allow the case to go to the jury.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), overruled on other grounds, Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). Black‘s Law Dictionary defines a prima facie case as occurring when one party produces “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party‘s favor.” BLACK‘S LAW DICTIONARY 1209 (7th ed. 1999). Similarly, in the context of employment law, a prima facie case is established by
The definition of a prima facie case is pertinent to a civil action when a court considers a preliminary objection in the nature of a demurrer pursuant to
It is therefore self-evident that if a prima facie case is stated, a demurrer necessarily will fail; conversely, by definitiоn, where a prima facie case obtains, a court cannot conclude with certainty that no recovery is possible. To require demonstration of a prima facie case prior to allowing pre-complaint discovery is tantamount to writing pre-complaint discovery out of the civil rules entirely, inasmuch as the courts of our Commonwealth largely have agreed, in so many words, that pre-complaint discovery is permissible only where a complaint sufficient to withstand a demurrer cannot otherwise be made out. Thus, to hold that a prima facie case must be shown before allowing pre-complaint discovery leads to an absurd and unreasonable result that violates our guiding principles of rule construction. See
IV.
Having rejected as untenable the Superior Court‘s attempt to clarify the standard Pennsylvania courts must employ in evaluating a request for pre-complaint discovery, it remains for us to fashion an appropriate standard. As noted at some length, supra, Pennsylvania trial courts have relied on a number of criteria over the years to evaluate such requests. The emergent consensus in the trial courts of this Commonwealth holds that pre-complaint discovery should be restrictively allowed, narrowly drafted, and permitted only when a complaint capable of surviving preliminary objections cannot be filed without aid of the requested discovery. While we do not necessarily quarrel with this synthesis of Pennsylvania law, we note that it vests nearly unbridled discretiоn in the trial courts, has caused them much consternation, and has resulted in the disallowance of almost all requests for pre-complaint discovery.
Although we specifically reject the Superior Court‘s holding in this case attempting substantially to curtail pre-complaint discovery, we also recognize the dangers of unconfined pre-complaint discovery. Indeed, the risks of implementing discovery standards that are too permissive are effectively articulated in the above caselaw and enumerated in the rules governing discovery, which grant courts wide discretion to deny discovery where it is sought in bad faith; would cause the party against which it is sought unreasonable annoyance, embarrassment, oppression, burden, or expense; or would entail unreasonable investigation.
This concern for dilatory, vexatious, or otherwise abusive litigation conduct is reflected elsewhere in Pennsylvania law. Specifically, our “Dragonetti Act,”
- The defendant has procured, initiated or continued the civil proceedings against him.
- The proceedings were terminated in his favor.
- The defendant did not have probable cause for his action.
- The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
- The plaintiff has suffered damages....
(a) Elements of action.—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [where]:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
42 Pa.C.S. § 8351 .
The Dragonetti Act provides a useful window through which to view the discovery question before us, because the injuries it aims to remedy and deter materially resemble those enumerated in rules 4011 and 4012. Compare
Accordingly, we look to the Dragonetti Act‘s requirement that an absence of probable cause to support the underlying suit be shown before an action for wrongful use of civil proceedings is allowed to guide us in adding to the standard previously articulated by our trial courts in deciding whether to allow pre-complaint discovery. We believe the addition of the requirement that plaintiff show probable cause to believe that pre-complaint discovery is necessary to the formation of a legally sufficient complaint is consistent with prior Pennsylvania caselaw and the applicable procedural rules. Moreover, the term “probable cause” is sufficiently well defined and understood in Pennsylvania law to ensure an objective, unified standard, which at once permits a plaintiff who can meet it the opportunity to use pre-complaint discovery to garner sufficient supplemental information to allow the filing of a sustainable complaint, and, conversely, protects defendants from bad faith,
This does not, however, end our inquiry. First, to articulate our reasoning fully, we must define probable cause vis-à-vis pre-complaint discovery; what a court might reasonably expect a plaintiff to produce to demonstrate probable cause prior to the filing of a complaint differs substantially from the standard it might apply to a litigant who has successfully shepherded a lawsuit through a full trial. These differences are manifest in the two doctrines harmonized above. The Dragonetti Act, in its requirement that the proceedings from which the allegedly tortious conduct arose have been terminated in favor of the Dragonetti plaintiff, requires a hindsight evaluation of a litigant‘s reasons for suing in the first instance. This inquiry, necessarily, will be colored by the information revealed during the course of trial. Conversely, any assessment of the propriety of a pre-complaint discovery request can be considered only in light of a plaintiff‘s offers of proof without benefit of more. Accordingly, even inasmuch as these two inquiries sound in substantially similar terminology, the import of those usages will vary to accommodate their divergent contexts.
Given our substantial reliance on the Dragonetti Act, we find it illuminating to consider the Act‘s definition of probable cause.
A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which his claim is based, and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is
not intended to merely harass or maliciously injure the opposite party.
42 Pa.C.S. § 8352 .
Under the Commonwealth‘s fact-pleading regime, any complaint must state facts in which the complainant reasonably believes, and under which a good faith argument may reasonably be made that Pennsylvania law provides, or under developing law may provide, relief. Similarly, it must be the case that, in seeking pre-complaint discovery, the moving party can set forth probable cause that, based on facts known to him, the evidence sought prior to the filing of a complaint will support a cognizable cause of action pursuant to existing or developing Pennsylvania law.
We find substantial support for this analysis, and a great deal of refinement, in a comparablе combination of Connecticut doctrines. In lieu of the Pennsylvania practice of permitting pre-complaint discovery, Connecticut authorizes an independent action in equity for discovery designed to obtain evidence for use in a subsequent action. Berger v. Cuomo, 230 Conn. 1, 644 A.2d 333, 337 (1994) (citing Peyton v. Werhane, 126 Conn. 382, 11 A.2d 800 (1940)). In Berger, plaintiff initiated a discovery action by filing a “bill of discovery,”19 and defendant challenged the propriety of the discovery request. The Connecticut Supreme Court set forth its criteria for weighing requests for pre-complaint discovery as follows:
Discovery is confined to facts material to the plaintiff‘s cause of action and does not afford an open invitation to delve into the defendant‘s affairs. Carten v. Carten, 153 Conn. 603, 613, 219 A.2d 711 (1966); Pottetti v. Clifford, [146
Id. at 337. The Connecticut test neither authorizes the proverbial fishing expedition nor otherwise fails for want of rigor. Indeed, it explicitly denies a litigant the “hope” that a case may be found by “thorough[ly] ransacking” materials in an opposing party‘s possession. Rather, the probable cause requiremеnt imposes an objective “reasonable person” standard. “Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action....” Paranto v. Ball, 132 Conn. 568, 46 A.2d 6, 7 (1946).
We also note that Connecticut relies on its own “vexatious suit” statute for its definition of probable cause in the context of pre-complaint discovery. See Berger, 644 A.2d at 337 (relying on Cosgrove Dev. Co. v. Cafferty, 179 Conn. 670, 427 A.2d 841 (1980), a case defining probable cause in the context of an action charging vexatious litigation). Connecticut‘s answer to our Dragonetti Act provides:
Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious
intent unjustly to vex and trouble such other person, shall pay him treble damages.
Conn. Gen. Stat. § 52-568 .20
These parallels are unsurprising, and this similarity of doctrinal approach merely persuades us further of the propriety of applying a probable cause standard to the determination whether a party should be entitled to pre-complaint discovery.
That said, we do not ratify the Connecticut standard wholesale, because it appears more permissive than we believe to be necessary. See Pottetti, 150 A.2d at 210 (“A pure bill of discovery is favored in equity and will be granted unless there is some well-founded objеction against the exercise of the court‘s jurisdiction.“).21 We do not find, in Connecticut‘s law, an unequivocal requirement that such discovery will be granted only where a litigant has averred that absent such discovery his suit will not be able to proceed. Indeed, its decision in Pottetti, which affords relief not only when discovery is material and necessary to the suit, but also when discovery “is needed to aid in the proof,” id. at 211, and which furthermore hints at a presumption in favor of such discovery, id. at 210 (granting such discovery “unless there is some well-founded objection“), suggests an orientation significantly more favorable toward pre-complaint discovery than we believe advisable.
In concluding our discussion, we note that the basic contours of the Dragonetti Act‘s and Connecticut‘s probable cause standard for the evaluation of the propriety of a given pre-complaint discovery request do not violate the constraints on discovery contained in Civil Rules 4011 and 4012. Rule 4011
The Superior Court erected an insurmountable barrier to the tried and true practice of pre-complaint discovery in aid of pleading provided in
Accordingly, to obtain pre-complaint discovery a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action.24
In practice, of course, a trial court addresses a discovery request not in abstract terms but in the context of the case at bar. In doing so, the court exercises significant discretion, weighing the importance of the request against the burdens imposed on the subject party to determine, as a practical matter, whether the discovery request should be permitted. Because the trial court is the body best situated to assess the legitimacy, necessity, and burden of a given discovery request, we are loath to disturb unduly the ingrained customs and practices of our trial courts of permitting the making of averments on “information and belief,”25 attempting to fashion a just result that best balances the needs of the adversary
V.
The record before us reveals insufficient information to assess the propriety of Henry Jr.‘s pre-complaint discovery request in light of the foregoing concerns. Accordingly, pursuant to parts I., II., III., and V. of this Opinion, as to which a majority of this Court agrees, the order of the Superior Court is reversed and the case remanded for further proceedings. Pursuant to the narrowest reasoning uniting a majority of the justices participating in this case,26 and the opinion of Mr. Justice Saylor, see Concurring Op., infra, at 446, 894 A.2d at 1280, given the facts of this case the trial court is directed to assess whether Henry Jr. can establish probable cause that his requested discovery will permit the filing of a complaint capable of surviving a demurrer in the instant litigation and to rule accordingly.27
Justice CASTILLE joins the opinion.
Former Justice NIGRO did not participate in the decision of this case.
Justice SAYLOR files a concurring opinion.
Chief Justice CAPPY files a dissenting opinion in which Justice EAKIN joins.
CONCURRING OPINION
Justice SAYLOR.
I join Parts I, II, III, and V of the majority opinion. Left to my own devices, however, I would direct that the trial court allow Appellant the opportunity to conduct meaningful discovery.
As to Part IV, in the first instance, I view the majority‘s efforts to establish principles to guide the trial courts’ discretion relative to the availability of pre-complaint discovery in matters of general application as salutary.1 However, I regard the facts and circumstances presented in this case as highly unusual and, as such, not readily amenable to a rule of general application. In particular, I agree with Appellant‘s argument that the trial court imposed a heightened burden upon him in connection with the pleadings, and, after having done so, abused its discretion by failing to afford him discovery to aid him in meeting such additional burden. My reasoning follows.
As indicated by the majority, the elements of the tort of intentional interference with testamentary expectancy are:
(1) The testator indicated an intent to change her will to provide a described benefit for plaintiff;
(3) The defendant was successful in preventing the execution of a new will; and
(4) But for the defendant‘s conduct, the testator would have changed his will.
Majority Opinion, at 419-20 n. 3, 894 A.2d at 1263-64 n. 3 (citing Cardenas v. Schober, 783 A.2d 317, 326 (Pa. Super. 2001)). In the present case, in his original, verified complaint, Appellant averred, inter alia, that:
Mrs. McNeil decided to treat [Appellant] equally with his siblings in her Will and took steps to do so, but was thwarted by [Appellee‘s] scheme [to interfere with Mrs. McNeil‘s testamentary intent].
* * *
[Wife-Appellee], motivated by her personal animus against [Appellant] and his children as well as by her desire to maximize the economic benefit for herself and her family, embarked on a scheme, together with [Husband-Appellee] to exert undue influence on her mother and other family members in order to increase her own control over family wealth. It was a central part of [Appellees‘] scheme to prevent Mrs. McNeil from providing [Appellant] and his family with an equal share of the family wealth, despite Mrs. McNeil‘s desire to do so.
* * *
[Appellees] also embarked on a рlan to control Mrs. McNeil and to interfere with the relationship between Mrs. McNeil and her son, [Appellant], including limiting his access to his mother and manipulating every aspect of Mrs. McNeil‘s daily affairs.
* * *
[Appellees] took advantage of Mrs. McNeil‘s vulnerability and frail heath to keep her in a position of physical and
psychological dependency so that they could exert maximum control over the family‘s finances and could influence key decisions that would affect [Appellant] and his family.
* * *
[Appellees] were concerned that, despite their efforts, Mrs. McNeil might successfully implement her intention to treat [Appellant] and his family equally with her other children and their families, so [Appellees] documented Mrs. McNeil‘s declining mental condition and failed to take steps to halt or slow its progress in order to be able to challenge any subsequent action favorable to [Appellant] and his family which she was able to take.
* * *
In view of her reconciliation with [Appellant] and their continuing positive relationship, Mrs. McNeil intended to treat him and his family equally to her other children and their families in her Will, and took steps to do so.
Solely to benefit herself and her family and to continue to punish [Appellant], [Appellees] intentionally interfered with Mrs. McNeil‘s intention to treat [Appellant] and his family equally in her estate plan documents.
* * *
... Mrs. McNeil was prevented from executing a Will treating [Appellant] and his family equally by virtue of [Appellees‘] undue influence and control over Mrs. McNeil, which extended to matters relating to hеr estate planning.
* * *
Without ever saying so explicitly, or even hinting that this was Mrs. McNeil‘s intent, the December 21, 1989 Will excludes [Appellant] and his family from the vast bulk of the wealth controlled by the Will, estimated to exceed $650 million.
Mrs. McNeil‘s strong and positive relationship with [Appellant] continued up to the time of her death in 1998. When she was able to effectuate her own views in family matters, she demonstrated her affection for [Appellant] and her desire to have him and his family treated equally in family matters.
Complaint ¶¶ 22, 23, 25, 41, 53-54, 56, 63, 70, R.R. 16a-25a. Following the fairly detailed factual recitation from which the above is excerpted, each element of the intentional-interference claim is affirmatively asserted in the complaint, among its various counts. See id. ¶¶ 73-98, R.R. at 25a-29a.
The above, in my view, adequately sets forth a cause of action for intentional interference with testamentary intent. The trial court, however, required Appellant to detail the affirmative evidentiary support for one of the elemental factual allegations (namely, that Mrs. McNeil intended to equalize Appellant‘s inheritance), at the pleadings stage. See McNeil v. Jordan, No. 99-04287 (C.P. Montgomery Jul. 11, 2000) (“Plaintiff has given this Court and Defendant no way to know that the Complaint is based on anything more than Plaintiff‘s speculation.“).2 In this respect, I believe that the trial court hybridized the standard governing resolution of a demurrer, which tests the legal sufficiency of a plaintiff‘s averments to state a cause of action assuming their truth, see MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 124, 674 A.2d 1050, 1056 (1996), with a summary judgment standard. Critically, however, in actual summary judgment proceedings predicated on a party‘s ability to prove essential elements of a claim or defense, discovery is generally available to such party. See
While the propriety of the trial court‘s order dismissing the original complaint is not directly before the Court at this juncture, Appellant persuasively argues that the order and its rationale serve as a factual circumstance that is relevant to appellate review of the trial court‘s discretionary decision concerning the availability of discovery directed to the preparation of an amended complaint. In light of the trial court‘s order, which had the effect of precluding Appellant from proceeding to discovery in the ordinary course on the complaint that he filed, I believe that it was an abuse of discretion to deny him access to such discovery to attempt to supplement his factual allegations to meet the court‘s heightened requirements, again, in the unusual circumstances presented.4
In terms of the result in this case, I agree with the majority that the Court‘s mandate must entail a remand for further proceedings, since such result is supported by three of the five eligible Justices. Further, I support the application by the common pleas court of the probable cause standard on remand in this particular case, as I also agree with the majority that this approach embodies the narrower of the grounds offered to
DISSENTING OPINION
Chief Justice CAPPY.
In essence, the Majority Opinion holds that under
The resolution of the issue presented in this appeal requires that certain of the Pennsylvania Rules of Civil Procedure be construed. This Court has articulated the principles by which we are to construe the Rules.
Construction of the Rules. Intent of the Supreme Court Controls
...
(b) Every rule shall be construed, if рossible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
In light of these principles, it is evident that under
What is not clear in
I believe that two of these considerations are dispositive. The first consideration is the consequences that will flow from the majority‘s interpretation of the Rules. See
The second consideration is the practice that has been followed under the Rules.
Therefore, I would conclude that this Court intends that the trial courts have the discretion under
Accordingly, I would affirm the Order of the Superior Court, holding that Appellant is not entitled to discovery under
Justice EAKIN joins this dissenting opinion.
Notes
- The testator indicated an intent to change her will to provide a described benefit for plaintiff;
- The defendant used “fraud, misrepresentation or undue influence” to prevent execution of the intended will;
- The defendant was successful in preventing the execution of a new will; and
- But for defendant‘s conduct, the testator would have changed his will.
(c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person‘s knowledge, information and belief, formed under an inquiry reasonable under the circumstances
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law,
(3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....