Kurtz v. Fiedler and Brubaker

 

KURTZ vs. FIEDLER, et al

 

 

Civil Action – Dead Man’s Act – Disqualification of Witness – Motion for Summary Judgment – Genuine Issue of Fact.

 

 

1. The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality.
2. The Court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party.  Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists.
3. The Dead Man’s Act is an exception to the general rule of evidence in this Commonwealth that no interest or policy of law shall make any person incompetent as a witness.  The purpose of the statute is to prevent the injustice that may result from permitting a surviving party to a transaction to give testimony favorable to himself and adverse to the decedent, which the decedent’s representative would be in no position to refute by reason of the decedent’s death.
4. Under the Death Man’s Act, three conditions must exist before the surviving party or witness is disqualified:  (1) the deceased must have had an actual right or interest in the matter at issue, i.e. an interest in the immediate result of the suit; (2) the interest of the witness–not simply the testimony—must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.
5. The Court stated that it could not grant summary judgment in favor of the Defendant even though the Plaintiffs and Co-Defendants might be barred from testifying by the Dead Man’s Act because the Plaintiffs’ claimed they had two (2) eye witnesses who could testify as to liability and whose testimony was not barred by having an adverse interest.  Consequently, the Court held that there were genuine issues of material fact as to liability and issued an Order denying summary judgment.

Defendant’s Motion for Summary Judgment.  C.P. of Lebanon County, Civil Action-Law, No. 2007-02208.

Nelson Levin, Esquire, for Plaintiffs

John J. McGrath, Esquire, for Defendant Carl F. Fiedler

James Brubaker, Pro Se

Lewis R. Brubaker, Pro Se

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION

 

THOMAS KURTZ and                       :

DEBORAH KURTZ,                                      :

:

Plaintiffs,                     :

:

v.                                                :        No: 2007-02208

:

CARL F. FIEDLER,                                      :

ADMINISTRATOR/EXECUTOR    :

OF THE ESTATE OF PATRICIA               :

FIEDLER, DECEASED, and            :

LEWIS R. BRUBAKER and                         :

JAMES BRUBAKER                                     :

:

Defendants.      :

 

APPEARANCES:

Nelson Levin, Esq. for the Plaintiffs

John J. McGrath, Esq. for Defendant Carl F. Fiedler

James Brubaker, Pro se

Lewis R. Brubaker, Pro se

 

OPINION, KLINE, J., FEBRUARY 3, 2012

Before the Court is Carl F. Fiedler’s Motion for Summary Judgment.  For the reasons set forth herein, we deny said Motion, as specified below.

FACTS AND PROCEDURAL HISTORY

            The Kurtzes filed a Complaint seeking damages for personal injuries allegedly sustained by them as a result of a motor vehicle accident that occurred on or about August 5, 2006.  It is alleged that a car driven by Patricia Fiedler was involved in a collision with a vehicle being operated by Lewis Brubaker and owned by James Brubaker.  The Kurtzes further aver that Deborah Kurtz was a passenger in the car driven by Patricia Fiedler, and she suffered injuries as a result of the accident.  Patricia Fiedler died on or about August 5, 2006.  The Complaint contains five counts.  In essence, the Complaint alleges that Patricia Fiedler and Lewis Brubaker were negligent, and James Brubaker was negligent in entrusting his vehicle to Lewis Brubaker.  Thomas Kurtz also raises a loss of consortium claim.  The Kurtzes aver that all Defendants are jointly and severally liable.

Carl Fiedler filed his Motion for Summary Judgment on November 3, 2011.  The Kurtzes filed their Answer to the Motion for Summary Judgment on November 29, 2011.  Carl Fiedler filed a brief in support of his position on December 9, 2011.  Both James and Lewis Brubaker filed briefs in support of their positions on December 13, 2011.  The Kurtzes filed a brief in support of their position on December 22, 2011.

The matter was originally listed for the December 2011 Term of Argument Court; however, it was continued until the January 2012 Term.  The parties waived oral argument and agreed to have the matter decided on the briefs.  The case is thus before us and ripe for disposition.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2. The

Rule provides:

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time

as not to unreasonably delay trial, any party may move for

summary judgment in whole or in part as a matter of law

 

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

 

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

 

Pa.R.C.P. 1035.2.  The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality.  Curran v. Children’s Service Center of Wyoming County, Inc., 578 A.2d 8 (Pa. Super. 1990).  “The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party.  Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists.” Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997) (citations omitted).

In the Motion, Carl Fiedler argues that no discovery has been conducted, and there are no known witnesses to the accident other than the surviving parties Deborah Kurtz and Lewis Brubaker.  Carl Fiedler further argues that neither the Kurtzes nor the co-defendants are legally qualified to testify about the actions of the decedent, Patricia Fiedler, under Pennsylvania’s Dead Man’s Act.  Therefore, Carl Fiedler argues that the Kurtzes cannot produce sufficient evidence so that a jury could find a fact essential to their cause of action against the Estate of Patricia Fiedler.

More specifically, Carl Fiedler contends that since the co-defendants and themselves are disqualified as witnesses to testify, it will be impossible for the Kurtzes to show a breach of any duty which may have been owed to them by the decedent.

The Kurtzes concede that although they and the co-defendants may not

be legally qualified to testify about the actions of Patricia Fiedler, they argue that they have two eye witnesses to the accident, Gary Schies and Gregory Header.  Therefore, they are able to offer evidence that Patricia Fiedler was negligent.

The Dead Man’s Act is an exception to the general rule of evidence in this Commonwealth that: “no interest or policy of law … shall make any person incompetent as a witness.” 42 Pa.C.S.A. § 5921. The purpose of the statute is to prevent the injustice that may result from permitting a surviving party to a transaction to give testimony favorable to himself and adverse to the decedent, which the decedent’s representative would be in no position to refute by reason of the decedent’s death.

 

Under the Dead Man’s Act three conditions must exist before the surviving party or witness is disqualified: “(1) the deceased must have had an actual right or interest in the matter at issue, i.e. an interest in the immediate result of the suit; (2) the interest of the witness-not simply the testimony-must be adverse; (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.”

 

Weschler v. Carroll, 578 A.2d 13, 15 (Pa. Super. 1989). (citations omitted).

The Court cannot grant Summary Judgment.  Although the Kurtzes and co-defendants may be barred from testifying against the interest of Patricia Fiedler, the Kurtzes claim that they have two eye witnesses to the accident who can offer evidence that Patricia Fiedler was negligent.  These witnesses were in police reports.  These witnesses are not barred by the Dead Man’s Act as their interests are not adverse to Patricia Fiedler.  The existence of these witnesses creates genuine issues of material fact as to liability.  Accordingly, the Motion for Summary Judgment is denied.  We will enter an Order consistent with the foregoing.