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NICHOLAS STATHAS AND ISABELL STATHAS v. GEORGE NEWTON WADE ESTATE BY ANNA RUTH WADE (12/02/77)

decided: December 2, 1977.

NICHOLAS STATHAS AND ISABELL STATHAS, APPELLANTS,
v.
GEORGE NEWTON WADE ESTATE BY ANNA RUTH WADE, CUMBERLAND COUNTY NATIONAL BANK & TRUST CO., EXECUTORS OF THE ESTATE OF GEORGE NEWTON WADE



No. 1821 October Term 1976, Appeal from the Judgment Entered June 2, 1976, by the Court of Common Pleas, Civil Action, Law, of Cumberland County at No. 14 February Term, 1974.

COUNSEL

Henry F. Coyne, Camp Hill, for appellants.

Mark E. Garber, Jr., Carlisle, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 251 Pa. Super. Page 271]

This appeal involves a claim for damages based on a rear-end collision near the Harvey Taylor Bridge in Harrisburg, on May 1, 1973. Appellants were injured when a car driven by George N. Wade struck their car from behind as they were waiting in a line of traffic. Wade died some months later of unrelated causes and his estate was made defendant in the action.

At the trial, which was before a judge sitting without a jury, appellants established Wade's negligence, but because of various evidentiary rulings, which will be explored here, they did not get full damages for their injuries; hence this appeal.

1

Appellants argue that it was error for the trial judge to strike their testimony about damages, specifically, about: days of sick leave, loss of earnings, salary, expenditures for drugs, and a bill for medical treatment of Isabell Stathas. This testimony was prohibited as violating the Dead Man's Act, Act of May 23, 1887, P.L. 158, § 5(e), 28 P.S. § 322, which provides:

Nor, where any party to a thing or contract in action is dead, . . . and his right thereto or therein has passed . . . to a party on the record who represents his interest . . ., shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse . . ., be a competent witness to any matter occurring before the death of said party . . . .

In construing a statute we must consider the legislature's purpose in enacting it. Act of May 28, 1937, P.L. 1019, Art. IV, § 51, 46 P.S. § 551; Clearview Bowling Center, Inc. v. Borough of Hanover, 430 Pa. 579, 244 A.2d 20 (1968); Commonwealth ex rel. Jones v. Jones, 216 Pa. Super. 1, 260 A.2d 809 (1969). The purpose of the Dead Man's Act is "to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give

[ 251 Pa. Super. Page 272]

    testimony thereon favorable to himself and adverse to the decedent, which the latter's representative would be in no position to refute." Weaver v. Welsh, 325 Pa. 571, 577, 191 A. 3, 7 (1937). Dead Man's legislation is common, and other courts have spoken to the same effect. For example: "The temptation to falsehood and concealment in such cases is considered too great to allow the surviving party to testify in his own behalf. Any other view of this subject, I think, would place in great ...


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