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Davis v. Wright

Superior Court of Pennsylvania

February 27, 2017

DONALD DAVIS, CARMEN GIBSON Appellants
v.
BYRON WRIGHT, JR., ADMINISTRATOR OF THE ESTATE OF BYRON L. WRIGHT, DECEASED

         Appeal from the Order July 13, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 150701828

          BEFORE: SHOGAN, OTT and STEVENS, P.J.E. [*]

          OPINION

          STEVENS, P.J.E.

         Donald Davis and Carmen Gibson (collectively "Appellants") appeal from the Court of Common Pleas of Philadelphia County's July 13, 2016, order granting the motion for summary judgment filed by Appellee Bryon Wright, Jr., as Administrator of the Estate of Byron L. Wright ("the deceased").[1] For the reasons set forth below, we affirm.

         The relevant facts and procedural history are as follows: On July 16, 2015, Appellants filed a civil complaint averring that, on May 25, 2014, at approximately 9:30 p.m., Mr. Davis was operating a vehicle in which Ms. Gibson was a passenger when, without any negligence on their part, the deceased, who was operating his vehicle negligently, collided with their vehicle, resulting in serious, severe, and permanent injuries to Appellants.[2]

         On July 28, 2015, Appellee, as administrator of the deceased's estate, [3]filed an answer with new matter averring, inter alia, that the deceased was not negligent in any respect; Appellants were contributorily and/or comparatively negligent; Appellants assumed the risk of their activities; and the injuries and damages caused to Appellants were caused by or contributed to by the negligent acts or omissions of entities other than the deceased. Moreover, Appellee presented a counterclaim against Mr. Davis alleging the accident was caused solely by his negligent operation of his vehicle, and any injuries sustained by Ms. Gibson was attributed solely to Mr. Davis' negligence.

         Appellants filed a reply to Appellee's new matter, and Mr. Davis filed a reply to Appellee's counterclaim. On April 29, 2016, Appellee filed a motion for summary judgment, along with a supporting memorandum. In the motion, Appellee alleged, in relevant part, the following:

8. [The decedent] was interviewed about the happening of the accident on May 27, 2014.
9. [The decedent] describes an accident occurring at approximately 10:30 p.m. He was traveling southbound on 84thSt. There are two travel lanes. [The] decedent was in the left land and [Appellants'] vehicle was in the right lane.
10. According to [the] [d]ecedent [Appellants'] vehicle made a sudden lane change into his lane causing the collision.
11. [The] [d]ecedent describes a low-speed impact. At the accident scene, [Appellants] said "we are going to get us some money now."
12. A photograph of [the decedent's] vehicle shows damage to the driver side front of the vehicle.
13. A photograph of [Appellants'] vehicle shows damage to the passenger side rear.
14. If alive, [the decedent] would testify that the accident was caused by the actions of [Mr. Davis.]
15. If alive, [the decedent] would testify regarding the lack of severity of impact, and the statements made by [Appellants] at the accident scene in his defense of [Appellants'] claims for injury.
16. [Appellants] are precluded from testifying against [Appellee] by virtue of the Dead Man's [Statute, ] 42 Pa.C.S.A. [§] 5930.
17. If [Appellants] are precluded from testifying about the happening of the accident and the nature and extent of their injuries, they will not be able to prove their case against [Appellee].
18. Allowing [Appellants] to testify against [Appellee] will be extremely prejudicial to [Appellee] since [the decedent], by virtue of his death, is unable to testify.

         Appellee's Motion for Summary Judgment, filed 4/29/16, at 3-4 (citations to record omitted). Accordingly, Appellee requested the trial court enter summary judgment in favor of the estate since "application of [the] Dead Man's [Statute] prohibits [Appellants] from testifying against [Appellee] thereby making it impossible for [Appellants] to prove their claims of negligence[.]" Appellee's Memorandum of Law in Support of Motion for Summary Judgment, filed 4/29/16, at 5.

         On May 26, 2016, Mr. Davis filed an answer in opposition to Appellee's motion for summary judgment requesting the trial court deny Appellee's motion for summary judgment as to Appellants' complaint but enter summary judgment in favor of Mr. Davis as to Appellee's counterclaim. Mr. Davis' theory was that Appellee admitted in the motion for summary judgment that Appellee could produce no evidence in support of the counterclaim.

         Thereafter, on May 31, 2016, Appellants filed a joint response in opposition to Appellee's motion for summary judgment in which they contended that Appellee had waived the protections of the Dead Man's Statute by failing to timely raise the issue in the answer and new matter to Appellants' complaint, i.e., the first responsive pleading following the decedent's death. Also, Appellants averred Appellee had waived application of the Dead Man's Statute by participating in discovery, i.e., deposing the police officer who authored the investigation report of the subject accident. Alternatively, Appellants argued that, assuming, arguendo, Appellee did not waive application of the Dead Man's Statute, the evidence of record still supported a prima facie claim that the decedent was negligent, i.e., the police officer, who is an independent third party, would be competent to testify the decedent was negligent. Accordingly, Appellants requested the trial court deny Appellee's motion for summary judgment.

         By order dated July 13, 2016, the trial court granted Appellee's motion for summary judgment and dismissed Appellants' complaint with prejudice. However, the trial court specifically noted "the request to have all [counterclaims] dismissed is denied without prejudice for [Mr. Davis] to file a motion requesting this relief." Trial Court Order, dated 7/13/16, at 1 (footnote omitted).

         On July 14, 2016, Mr. Davis filed a motion for summary judgment, along with a supporting memorandum, pertaining to Appellee's counterclaim. However, prior to the trial court ruling on Mr. Davis' motion for summary judgment, Appellants filed the instant notice of appeal on July 18, 2016. In any event, thereafter, on September 12, 2016, the trial court entered an order granting Mr. Davis' motion for summary judgment and dismissing with prejudice the pending counterclaim. The trial court did not direct Appellants to file a Pa.R.A.P. 1925(b) statement, and thus, no such statement was filed. However, the trial court filed a Pa.R.A.P. 1925(b) opinion explaining the reasons for its decision. [4]

         Appellants present the following issues for our review:

1. Whether the trial court abused its discretion and otherwise committed an error of law when it improperly granted [Appellee's] Motion for Summary Judgment, despite the fact that there was a waiver of the protections of the Dead Man's [Statute] by both participation in discovery as well as a failure by [Appellee] to timely and properly object in [Appellee's] first responsive pleading?
2. Whether the trial court abused its discretion and otherwise committed an error of law when it improperly granted [Appellee's] Motion for Summary Judgment, despite the fact that there were other competent witnesses and documentary evidence, aside from [Appellants'] testimony, which establishes the decedent/[Appellee's] liability?

         Appellants' Brief at 5.

         At the outset, we note that we review a challenge to the entry of summary judgment as follows:

A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. [Pa.R.C.P. 1035.2(1).] Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. [Pa.R.C.P. 1035.2(2).] Lastly, we ...

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