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KEYSTONE PRINTED SPECIALTIES COMPANY v. FRANCES FISCHER (03/13/81)

filed: March 13, 1981.

KEYSTONE PRINTED SPECIALTIES COMPANY, INC.,
v.
FRANCES FISCHER, EXECUTRIX OF THE ESTATE OF PHILIP G. FISCHER, JR., DECEASED, APPELLANT



No. 581, Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil Action-Law, at No. 545 November Term 1977 (Declaratory Judgment).

COUNSEL

Charles F. Wilson, Scranton, for appellant.

James T. McHale, Scranton, for appellee.

Wickersham, Van der Voort and Lipez, JJ.

Author: Lipez

[ 287 Pa. Super. Page 374]

This was a declaratory judgment action brought by appellee Keystone Printed Specialties, Inc. (Keystone), to compel appellant to sell to them certain shares of stock, according to an agreement by which Keystone asserted appellant Frances Fischer (Frances) was bound. The court below ordered Frances to transfer the stock to Keystone in exchange for what Keystone claimed was the contractual price, and Frances has appealed.

Since the agreement purportedly was made between Keystone and appellant's decedent, who was a stockholder of Keystone, and since Frances argues that Keystone's corporate secretary should not have been allowed (as he was) to qualify in evidence certain business records showing various of the decedent's statements and actions relevant to this action, we shall first consider whether these records were properly admitted.*fn1

The so-called Dead Man's Statute*fn2 provides, in relevant part:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, . . . neither any surviving . . . party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased . . . party, shall be a competent witness to any matter occurring before the death of said party . . . .

The challenged evidence consisted of the official minutes of various meetings of the corporation's directors and shareholders, at some of which the agreement had been discussed by and among the decedent and the other officials and various actions taken with regard thereto. Appellant's position is that the Dead Man's Statute prevents the identification and the qualification in evidence of those records by an

[ 287 Pa. Super. Page 375]

    otherwise competent custodian who is also a shareholder in the corporation. We conclude otherwise.

The general rule is that "'a stockholder of a corporation which had contracted with a decedent during his lifetime is not competent as a witness on behalf of the corporation in procuring a claim against such decedent's executor for breach of contract.'" Broderick Co. v. Emert, 110 Pa. Super. 327, 333, 168 A. 512 (1933), quoting Whitehouse's Estate, 18 D. & C. 558 (1932) quoting Fritz's Estate, 17 Berks Co.L.J. 223 (1925). However, this prohibition is applied only to testimony regarding matters occurring before the death of the other party. The challenged testimony, offered by Martin Fischer, Keystone's corporate secretary, was merely qualification of the official minutes of various stockholders' and directors' meetings. These documents subsisted at the time of trial. "Where the existing fact merely tends to prove by implication that the same or a similar state of facts existed prior to the death of the testator, the witness is competent, but where it appears that the testimony necessarily relates to that which existed or took place in the testator's lifetime, the witness is incompetent." Foster v. Collner, 107 Pa. (11 Outerbridge) 305, 312 (1884). The testimony at issue in the instant case ...


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