questions, knowledge must exist of the practice and trial of civil actions in this court.
This court has promulgated and placed into operation a standard order relative to the administration of cases which involve personal injuries by the adoption of uniform pre-trial procedure and the use of a Master Civil Jury List which contains only cases that have been given thorough pre-trial consideration.
In connection therewith, cases are not assigned to individual judges, and it is impossible to anticipate in advance which member of the court will preside at the pre-trial or trial of any given case. If the pre-trial judge were known, it is impossible to determine whether the presiding pre-trial judge would deem it proper to resolve evidentiary questions of substantial import, or as a matter of policy would relegate the same for the determination of the trial judge.
The cogency of this reasoning becomes even more manifest when, as in the instant circumstances, the evidentiary question raised has not been resolved by a federal or Pennsylvania State decision, and is subject to the contingency of varying views by different judges.
Succinctly stated, the following question is presented as relates to the competency of evidence:
Where actions are filed by A, B and C against E as Administrator of the Estate of D, can the various plaintiffs testify against the interests of decedent if the actions are tried separately and/or jointly, in view of the provisions of what is termed as the Dead Man's Act in Pennsylvania, 28 P.S.Pa. § 322.
More particularly, the question may be stated thusly: Where several persons have joined as co-plaintiffs under the permissible joinder rules and each is incompetent, because of the Dead Man's Act, to testify in behalf of his own claim against the deceased defendant estate, is he precluded from testifying on behalf of the claims of his fellow plaintiffs at the trial of the action?
The competency of the witnesses involved should be decided under Pennsylvania law or federal law, whichever is most favorable. Rule 43(a), Fed.R.Civ.Proc. Each plaintiff, in his action against the defendant administrator, is incompetent by reason of his adverse interest. In re Hendrickson's Estate, 388 Pa. 39, 44, 130 A.2d 143; Act of May 23, 1887, P.L. 158, 28 P.S.Pa. § 322; Wright v. Wilson, 3 Cir., 154 F.2d 616, 620, 170 A.L.R. 1237, certiorari denied 329 U.S. 743, 67 S. Ct. 50, 91 L. Ed. 640.
The law is now settled in the Third Circuit that once a member of the court enters a ruling on any aspect of the proceeding, no other member of the court has the right to overrule the decision of any other member of the court, barring death of the judge, his resignation, or his completion of a temporary assignment to a district. United States v. Wheeler, 3 Cir., 256 F.2d 745.
For the reasons heretofore stated, I believe the evidentiary question and consolidation of the two actions must be resolved by the trial judge.
An appropriate Order is entered.