The most recent decision by the Superior Court on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 is the case of Davis v. Wright, 2017 Pa. Super. 48 (Feb. 27, 2017). Defendant’s Summary Judgment Motion was granted by the trial court based upon the Dead Man’s Act. The Superior Court affirmed and held that the Defendant did not waive the Dead Man’s Act defense.
This case arose from a fatal motor vehicle accident. The Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or interrogatories were completed. The court additionally noted that the defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in the New Matter pursuant to Pa. R.C.P. 1030 to be preserved. There is no requirement that the Dead Man’s Act be pleaded in the initial responsive pleading. The court agreed with the defense position that the Plaintiff witnesses were incompetent to be adverse to the decedent under the Dead Man’s Act and that without the testimony of these witnesses, the Plaintiffs were unable to carry of burden of proof of negligence at trial.
Moreover, the court confirmed that the only evidence offered to prove negligence was the speculative testimony of the police officer who prepared the accident report. The Court found that issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did not witness the accident, had no independent knowledge of the accident and received his information from the Plaintiff to complete his report. Absent witnesses or evidence which is independent and non-adverse to the decedent, the Plaintiffs could not prevail pursuant to the Act.
Questions regarding this matter should be directed to David Friedman.
