Rose Marie Yancoskie vs. Igor Salitra, et al No. 2015-00819

Civil Action-Law-Motor Vehicle Accident-Pre-complaint Discovery-Stay of Civil Proceedings Pending Outcome of Criminal Proceedings-Protective Order-Fifth Amendment-Right Against Self-Incrimination

1. Plaintiff, executrix of Richard A. Yancoskie (“Decedent”), filed a Writ of Summons against Defendant, the driver of a tractor trailer that was involved in a motor vehicle collision with the vehicle the Decedent was driving. Decedent was pronounced dead at the scene of the collision. Criminal charges including Homicide by Vehicle were lodged against Defendant pertaining to that collision. Defendant filed a Motion for Protective Order asserting that responding to pre-complaint interrogatories would require him either to waive his Fifth Amendment right against self-incrimination or to assert that right and risk its use as a negative inference against him in the civil matter and a Motion for Stay of the Civil Proceedings pending the outcome of the criminal proceedings.

2. Six (6) factors consistently are referenced when a court is considering whether to grant a stay of proceedings: (1) the extent to which the issues in the criminal and the civil cases overlap; (2) the status of the case, including whether the defendant has been indicted; (3) the plaintiff’s interest in proceeding expeditiously weighed against the prejudice to the plaintiff caused by the delay; (4) the private interests of and the burden upon the defendant; (5) the interest of the court; and (6) the interest of the public.

3. A stay of the civil proceedings is not required when Plaintiff may continue with discovery and may depose other witnesses without implicating Defendant’s Fifth Amendment rights and may take Defendant’s deposition, if needed, after the criminal charges have been adjudicated.

4. Pa.R.C.P. Rule 4003.8(a) provides that a plaintiff may obtain pre-complaint discovery where the information sought is necessary and material to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

5. Rule 4003.8(b) further requires that upon motion for a protective order, the court may require the plaintiff to state with particularity how the discovery materially will advance the preparation of the complaint and that the court shall weigh the importance of the discovery request against the burden imposed on any person or party from whom discovery is sought in deciding the motion for protective order.

6. The Fifth Amendment to the United States Constitution guarantees that no person shall be compelled in any criminal case to be witness against himself. Similarly, Article I, Section 9 of the Pennsylvania Constitution guarantees that the accused cannot be compelled to give evidence against himself in all criminal prosecutions.

7. When a party claims the privilege against self-incrimination in a civil proceeding, an adverse inference may be drawn from that fact.

8. Plaintiff’s assertion that Defendant may rely upon his constitutional right against self-incrimination would serve only to bolster Plaintiff’s case should Defendant be required to claim this privilege while criminal proceedings are pending against him such that the Motion for Protective Order was granted as to all pre-complaint interrogatories lodged except for one (1) interrogatory regarding Defendant’s insurance carrier.

L.C.C.C.P. No. 2015-00819, Opinion by Charles T. Jones, Jr., Judge, September 15, 2015.

John W. Ditzler, Esquire, for Plaintiff

Jay M. Green, Esquire, for Defendants

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No. 2015-00819

ROSE MARIE YANCOSKIE, Individually and as Executrix of the Estate of RICHARD A. YANCOSKIE, Plaintiff

v.

IGOR SALITRA and SALITRA TRUCKING, INC., Defendant

ORDER

AND NOW, this 15th day of September, 2015, after careful consideration of the record, Defendant’s Motion for a Protective Order against Plaintiff’s Pre-Complaint Discovery is hereby GRANTED in part and DENIED in part. Defendant’s Motion for a Stay of proceedings is hereby DENIED. Defendant is directed to respond to Question 51 of Plaintiffs’ Pre-Complaint Interrogatories only.

BY THE COURT:

CHARLES T. JONES, JR., J.

APPEARANCES:

John W. Ditzler, Esquire For Plaintiff

Reilly Wolfson

Jay M. Green, Esquire For Defendant

Bodell Bove, LLC

OPINION BY JONES, J.:

Before this Court are Defendant’s Motions for a Protective Order and a Stay of Proceedings. Defendant requests this Court issue a Protective Order barring Plaintiff from seeking evidence from Defendant which may implicate his Fifth Amendment rights and from seeking overbroad information for the purposes of filing a Complaint. Defendant also requests this Court stay the proceedings in this matter pending the outcome of criminal proceedings against Defendant relating to the same vehicle crash at issue in this matter. This Court finds that Defendant shall only be required to answer question fifty-one (51) of Plaintiff’s Pre-Complaint Interrogatories and that a complete stay of these proceedings is not appropriate in this matter.

FACTUAL HISTORY

On January 28, 2015, Igor Salitra (herein Defendant) was the driver of a tractor-trailer which was involved in a collision with a passenger car driven by Richard A. Yancoskie (herein Decedent Plaintiff) in which Rose Marie Yancoskie (herein Plaintiff; collectively Plaintiffs) was a passenger. Decedent Plaintiff was pronounced dead at the scene of the collision. Plaintiff has filed a Writ of Summons naming herself, individually and as the Executrix of Decedent Plaintiff against Defendant and his one man trucking company, Salitra Trucking, Inc. (herein Defendant Company; collectively as Defendants). Defendant was criminally charged in relation to the same collision. Defendant has been charged with the following:

Homicide by Vehicle (F3);

Improperly Backing Up Vehicle (S);

Three (3) counts of Remove/Render Inoperable Required Equipment (S);

Failure to Comply with License Restriction (S);

Involuntary Manslaughter (M1);

Careless Driving (S); and

Making a U-Turn Unsafely (S).

Plaintiffs’ Pre-Complaint Interrogatories request Defendant to respond to sixty-nine (69) fact intensive questions. Defendant’s Motion for a Protective Order raises the issue that his answers to these interrogatories will require him to either waive his Fifth Amendment right in this matter and the criminal matter or assert his Fifth Amendment right and have it used as a negative inference against him in the civil matter.

PROCEDURAL HISTORY

Plaintiff filed a Writ of Summons on May 8, 2015. Plaintiff has not filed a Complaint at this time. Plaintiff served Defendant with Pre-Complaint Interrogatories on June 18, 2015. Defendant filed a Motion to Stay the Proceedings and a Motion for a Protective Order on July 17, 2015. The matter was listed for Oral Argument for August 18, 2015. Oral Argument was held as scheduled. The matter is now ripe for disposition.

DISCUSSION

Defendant’s Motion requests both a Stay of the Civil Proceedings and a Protective Order barring Plaintiff from seeking overbroad pre-complaint discovery and to protect Defendant’s Fifth Amendment rights, as an individual.

Motion to Stay Proceedings

Defendant’s Motion to Stay seeks to place a complete stay on these civil proceedings pending the outcome of the criminal proceedings against Defendant. The factual basis for Plaintiff’s claims arise out of the same exact incident for which Defendant has been criminally charged. Defendant avers that a complete stay of the civil proceedings is necessary to protect his Fifth Amendment right against self-incrimination and to prepare a full and proper defense against the civil claims.

Plaintiff avers that there is no Pennsylvania law which would suggest that a stay of the proceedings is necessary at this point in the civil matter. Plaintiff alleges that Defendant may assert his Fifth Amendment rights as the need arises. Plaintiff believes that a stay of the proceedings would prejudice Plaintiff and cause unnecessary delay.

Although not binding on this Court’s decision, comparable case law exists from neighboring jurisdictions and from the District Courts, which provides this Court with ample guidance in its determination. Six factors are consistently referenced when considering whether to grant a stay. Those factors are as follows: 1) the extent to which the issues in the criminal and civil cases overlap; 2) the status of the case, including whether the defendant has been indicted; 3) the plaintiff’s interest in proceeding expeditiously weighed against the prejudice to plaintiff caused by a delay; 4) the private interests of and burden on the defendant; 5) the interest of the Court; and 6) the public interest.

Anderson v. Scott, 2011 WL 10795429, *2 (Pa.Cmwlth. 2011) (citing Kaiser v. Stewart, 1997 U.S.Dist. LEXIS 1377, *5 (E.D.Pa. Feb. 6, 1997); Walsh Securities, Inc. v. Cristo Property Management, Ltd., 7 F.Supp.2d. 523, 527 (D.N.J. 1998)).

Applying the six (6) factors noted above to this case:

The issues in the criminal and the civil matters overlap completely.

The Complaint has not yet been filed in the civil matter and the criminal charges against Defendant have been held over for court.

Plaintiff will be prejudiced by delay in that witnesses may become unavailable or forget information and facts necessary for their case and Plaintiff would like to settle the estate of Decedent Plaintiff.

Defendant’s Fifth Amendment rights have been raised as a burden on Defendant to produce details to Plaintiff that may incriminate him.

The Court has an interest in allowing Plaintiff to continue in their case and to protect Defendant’s Fifth Amendment rights.

The public and the Court will be served by expeditious completion of this matter.

The above case law is not binding on this Court. This Court finds that Defendant’s Fifth Amendment rights can be protected without delaying the civil proceedings. Plaintiff may continue discovery and depose other witnesses without Defendant’s rights being implicated. Defendant’s deposition, if needed, may be taken after the criminal charges against him have been adjudicated. A stay of these civil proceedings is not necessary. Thus, Defendant’s Motion to Stay the Proceedings is denied.

Motion for Protective Order

Defendant has also filed a Motion for a Protective Order which seeks to bar Plaintiff from seeking overbroad information in the Pre-Complaint Interrogatories and responses that implicate Defendant’s Fifth Amendment rights.

(a) A plaintiff may obtain pre-complaint discovery where the information sought is necessary and material to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.

(b) Upon a motion for protective order or other objection to a plaintiff’s pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom discovery is sought.

Pa.R.C.P. 4003.8. In relevant part, the Fifth Amendment to the United States Constitution states: “No person shall … be compelled in any criminal case to be a witness against himself.” U.S.C.A. Const. Amend. V. In relevant part, the Pennsylvania Constitution states that: “in all criminal prosecutions the accused … cannot be compelled to give evidence against himself.” Pa.Const. Art. 1 § 9.

Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.

42 Pa.C.S.A. § 5491(a).

After reviewing Plaintiff’s Pre-Complaint Interrogatories, this Court finds that they are generally overbroad and request information which is 1) necessarily known to Plaintiff 2) not necessary and material to the filing of the complaint, or 3) which implicates Defendant’s Fifth Amendment right against self-incrimination. “When a party claims the privilege against self-incrimination in a civil proceeding, an adverse inference may be drawn from that fact.” Frompovicz v. W.C.A.B. (Palsgrove), 642 A.2d 638, 641 (Pa.Cmwlth. 1994). Plaintiff’s assertion that Defendant may rely on the assertion of his rights to protect him, will only serve to bolster Plaintiff’s case should Defendant be required to claim this privilege while criminal proceedings are pending against him. This Court finds that the only interrogatory to which Defendant should be required to respond is question fifty-one (51), having to do with Defendant’s insurance carrier. The remainder of Plaintiff’s Pre-Complaint Interrogatories fit into one of the categories noted by this Court above. Therefore, Defendant’s Motion for a Protective Order is granted, except as to question fifty-one (51).

CONCLUSION

For the reasons set forth above, Defendant’s Motion for a Stay of the Civil Proceedings is denied and Defendant’s Motion for a Protective Order is granted, except as to question fifty-one (51), to which Defendant is directed to respond. An Order will be entered consistent with the foregoing.

1) Since these Motions refer to the rights of only Defendant as an individual, not Defendant Company, this Court will only address the issues as they apply to Defendant as an individual.