J-A08036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIE REIS AND SCOTT J. REIS, 

H/W

v.

SCOTT J. REIS, ADMINISTRATOR OF 

THE ESTATE OF BARBARA REIS, 

DECEASED

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3075 EDA 2019

Appeal from the Order Entered September 24, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 190201075

BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED JUNE 03, 2020

In this slip and fall case, Scott J. Reis (Appellant), administrator of the 

estate of Barbara Reis (Decedent), deceased, appeals from the discovery 

order entered in the Philadelphia County Court of Common Pleas. Appellant

contends the discovery order is appealable as a collateral order under 

Pa.R.A.P. 313 because, inter alia, his compliance with the order would result 

in waiver of his “defense” under the so-called Dead Man’s Act.

1

 We quash.

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1 42 Pa.C.S. § 5930. The statute provides, in pertinent part:

[I]n any civil action or proceeding, where any party . . . is 

dead . . . and his right thereto or therein has passed . . . to a party 

on the record who represents his interest in the subject in
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For ease of discussion, we first note: “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.” 

Larkin v. Metz, 580 A.2d 1150, 1152 (Pa. Super. 1990), citing 42 Pa.C.S.A. 

§ 5921. “The Act provides that one whose interest is adverse to the interest 

of a decedent is not a competent witness to any matter which occurred before 

the decedent’s death.” Schroeder v. Jaquiss, 861 A.2d 885, 887 (Pa. 2004). 

[T]he purpose behind the legislatively enacted Dead Man’s Statute 

is that the decedent’s representative is in no position to rebut the 

assertions presented by the adverse party, and thus, it would be 

unfair to permit a surviving adverse party to give testimony that 

is favorable to himself and unfavorable to the decedent’s interest.

Davis v. Wright, 156 A.3d 1261, 1268 (Pa. Super. 2017).

The purpose of the statute is to prevent the injustice that may 

result from permitting a surviving [witness] 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 

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controversy, neither any surviving or remaining party to such 

thing or contract, nor any other person whose interest shall be 

adverse to the said right of such deceased . . . shall be a 

competent witness to any matter occurring before the death of 

said party . . . .

42 Pa.C.S. § 5930.
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right of the deceased must have passed to a party of record who 

represents the deceased’s interest.”

Larkin, 580 A.2d at 1152 (citations omitted).

Appellant’s mother, Decedent, died on January 18, 2017. Five weeks 

thereafter, on February 22, 2017, Appellant’s wife, Marie Reis (Wife), 

allegedly slipped and fell on the sidewalk of property then owned by 

Decedent’s estate.

On February 13, 2019, Wife and Appellant together, as husband and 

wife, filed a praecipe for writ of summons, naming Appellant, in his capacity 

as administrator of Decedent’s estate, as the defendant. On April 10, 2019, 

however, Wife proceeded solely in filing a negligence complaint against 

Appellant, again as the administrator of Decedent’s estate.2 Appellant filed 

an answer and new matter, in which he claimed, inter alia, Wife’s “claim is 

barred by the Dead Man[‘]s Statute.” Appellant’s Answer & New Matter, 

4/18/19, at 3 (unpaginated).

On August 29, 2019, Wife filed a motion to compel discovery, explaining 

Appellant had informed her he “intend[s] to assert the Dead Man’s rule and 

not respond to any discovery requests.” Wife’s Motion to Compel Discovery

Responses, 8/29/19, at 2. Wife argued the Dead Man’s Act was not applicable 

because, inter alia, her slip and fall occurred after Decedent’s death. 

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2 Despite the complaint’s identification of only Wife as a plaintiff, Wife’s 

appellate brief erroneously indicates that both she and Appellant were 

plaintiffs.
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Following oral argument, the trial court granted Wife’s motion on September 

24, 2019, and directed Appellant to respond to Wife’s requests for documents 

and to submit to a deposition. The order also stated, however, that Appellant’s 

compliance with the order “shall not constitute a waiver of the Dead Man’s 

Rule.” Order, 9/24/19. On October 15th, Appellant took this appeal.3 The 

trial court issued an opinion, suggesting this Court quash this appeal because

its order was not a final order nor an appealable collateral order under 

Pa.R.A.P. 313. Trial Ct. Op., 11/8/19, at 2-3.

This Court issued a per curiam order directing Appellant to show cause 

why this appeal should not be quashed, as a discovery order is generally 

interlocutory and non-appealable.4 Order, 11/22/19, citing Robec, Inc. v. 

Poul, 681 A.2d 809, 811 (Pa. Super. 1996) (absent unusual circumstances, 

we will not review discovery orders prior to final judgment in the main action). 

Appellant responded the trial court’s order was an appealable collateral order 

because, inter alia, he is unable to comply with it without waiving his “defense”

under the Dead Man’s Act. Appellant’s Response to Rule to Show Cause, 

12/2/19, at 2. This Court discharged the rule to show cause, but advised 

Appellant the issue would be referred to the merits panel.

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3 The trial court did not require Appellant to file a Pa.R.A.P. 1925(b) statement 

of errors complained of on appeal.

4 This Court may raise the issue of jurisdiction sua sponte. Shearer v. Hafer, 

177 A.3d 850, 855 (Pa. 2018).
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Appellant presents two issues for our review:

1. Does the September 24, 2019 Order constitute a collateral 

order pursuant to Pennsylvania Rule of Appellate Procedure 313?

2. Did the trial court commit an error of law by entering the 

September 24, 2019 Order granting [Wife’s] Motion to Compel 

Discovery Responses where there will be irreparable harm after 

information discovered may compel waiver of Appellant’s defense 

under the Dead Man’s Act as a matter of law?

Appellant’s Brief at 5.

In his first issue, Appellant avers the trial court’s discovery order is an 

appealable collateral order under Pa.R.A.P. 313. In support, he contends: (1) 

the present issue, of whether providing discovery would result in waiver of the 

Dead Man’s Act, may be resolved separately from Wife’s underlying negligence 

claim; (2) the right involved—Appellant’s waiver of his “defense” under the 

Dead Man’s Act—is too important to be denied immediate review; and (3) 

once Appellant provides the discovery, his claim—that such discovery is not 

permitted under the Dead Man’s Act—would be irreparably lost. Appellant’s 

Brief at 12-14. Appellant proceeds on the premise that Wife’s cause of action 

lied against Decedent. Id. at 17 (“According to the Complaint, [Decedent] 

owned and/or maintained the property where [Wife] purportedly fell. . . . 

[D]ecedent’s failure to properly maintain her property prior to her death 

constitutes the alleged tortious conduct directly at issue.”). He maintains he

“is an incompetent witness under the Dead Man’s Act as a matter of law[ and] 

should not be compelled to participate in discovery and thereby waive his 

defense[.]” Id. at 16. Appellant also reasons:
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Both [Appellant and Wife], as husband and wife, stand to gain if 

[Appellant] is permitted to participate in the discovery. Moreover, 

[Appellant’s] testimony stands to be in direct conflict to 

[D]ecedent’s interest. Requiring [Appellant] to participate in 

discovery sets up exactly the fraudulent temptation that the Dead 

Man’s Rule seeks to prevent.

Id. at 17. Finally, Appellant disputes the trial court’s notation on the face of 

the September 24, 2019, order, that his compliance would not constitute 

waiver. Appellant maintains, without citation to authority, that “it is 

impossible for [him] to provide potentially adverse testimony and written 

discovery on behalf of the estate without waiver as a matter of law.” Id. at 

11 n.2.

Wife responds, inter alia, that “the incident that gives rise to the 

negligence and damages occurred after the death of [Decedent] when the 

estate would [have] been responsible for the property.” Wife’s Brief at 11

(emphases added); see also id. at 12 (“[T]he incident . . . that relates to this 

cause of action is based upon the condition of the sidewalk at the time of the 

fall which was after [D]ecedent’s death . . . . The prior condition of the 

sidewalk is not relative [sic] to the negligence action[.]”). Wife further 

proclaims “this case does not involve statements, conversations or documents 

with the deceased[.]” Id. at 11.

Generally, “an appellate court’s jurisdiction extends only to review of 

final orders.” Shearer, 177 A.3d at 855. “In Pennsylvania, final orders are 

those which (1) dispose of all claims and all parties, (2) are explicitly defined 
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as final orders by statute, or (3) are certified as final orders by the trial court 

or other reviewing body. See Pa.R.A.P. 341.” Id. at 856.

A narrow exception, however, is provided through the collateral order 

doctrine, which has been set forth at Pa.R.A.P. 313. Shearer, 177 A.3d at 

856, 858 (we construe collateral order doctrine narrowly). “[T]he question of

whether the collateral order doctrine has been met is jurisdictional in nature. 

Therefore, we must independently consider whether the collateral order 

doctrine has been satisfied.” Id. at 855. Rule 313 provides “[a]n appeal may 

be taken as of right from a collateral order,” which is defined as “an order 

separable from and collateral to the main cause of action where the right 

involved is too important to be denied review and the question presented is 

such that if review is postponed until final judgment in the case, the claim will 

be irreparably lost.” Pa.R.A.P. 313(a)-(b). Under the second prong, “a right 

is important if ‘the interests that would go unprotected without immediate 

appeal are significant relative to the efficiency interests served by the final 

order rule[ ]” and the right “implicate[s] interests ‘deeply rooted in public 

policy [and] going beyond the particular litigation at hand.” Shearer, 177 

A.3d at 858-59 (citations omitted).

Preliminarily, we correct Appellant’s mistaken premise that the Dead 

Man’s Act affords him a “defense.” See Davis, 156 A.3d at 1268 (“[T]he 

invocation of the protection based on the Dead Man’s Statute is not an 

‘affirmative defense.’ [B]y definition, an ‘affirmative defense’ pertains to ‘a 
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defendant’s assertion of facts and arguments that, if true, will defeat the 

plaintiff’s . . . claim, even if all the allegations in the complaint are true.”). 

Instead, the Dead Man’s Act is an evidentiary rule that acts to preclude 

testimony. Id.

We also reject the premise of Husband’s argument—that Wife’s cause 

of action ever lied against Decedent personally. See Appellant’s Brief at 17 

(“[D]ecedent’s failure to properly maintain her property prior to her death 

constitutes the alleged tortious conduct[.]”) Wife’s complaint named 

Appellant, the administrator of the estate, as the defendant—not Decedent. 

The complaint also averred the property was “owned by Defendant.” Wife’s 

Complaint at 1. We construe these two averments together to mean, as Wife 

avers on appeal, that the estate—not Decedent—owned the property at the 

time of the fall. See Wife’s Brief at 11. This is not a case where a plaintiff’s 

cause of action accrued while the property owner was alive, the owner

subsequently died, and the owner’s personal representative was substituted 

as a party. Thus, Appellant cannot show: (1) Decedent was ever a “party” or 

“had an actual right or interest in the matter;” or (2) that Decedent’s right 

“passed” to Appellant. See 42 Pa.C.S. § 5930; Larkin, 580 A.2d at 1152. 

Instead, both the underlying cause of action and the complaint were made 

against the estate. See id. Accordingly, we disagree with Appellant that the 

Dead Man’s Act applies.
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Furthermore, we reject Appellant’s implied position that the Dead Man’s 

Act precludes or shields him from providing any discovery or testimony in this 

case.

5

 First, the Act precludes testimony about “any matter which occurred 

before the decedent’s death.” Schroeder, 861 A.2d at 887 (emphasis 

added). Thus, the Act would not preclude Appellant, or any witness, from 

testifying about events arising after Decedent’s death.6

Second, in attempting to invoke the Dead Man’s Act to shield himself 

from Wife’s discovery and deposition request, Appellant ignores the policy 

behind the Dead Man’s Act—“that the decedent’s representative is in no 

position to rebut the assertions presented by the adverse party, and thus, 

it would be unfair to permit a surviving adverse party to give testimony 

that is favorable to himself and unfavorable to the decedent’s interest.” See 

Davis, 156 A.3d at 1268 (emphases added). We reject Appellant’s argument

that “[a]ny discovery” he provides “relating to the possible negligent 

condition of his mother’s property . . . is improper as it theoretically equates 

to an adverse interest to her estate.” See Appellant’s Brief at 18 (emphasis 

added). Instead, we reiterate that “the interest of the [deposed] witness—

not simply the testimony—must be adverse.” Larkin, 580 A.2d at 1152. 

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5 As stated above, Wife’s motion to compel discovery averred that Appellant

refused to respond to any discovery request pursuant to the Dead Man’s Act.

6

Indeed, Wife avers that “this case does not involve statements, 

conversations or documents with the deceased.” Wife’s Brief at 11.
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Here, Appellant has not established that in his capacity as the administrator 

of Decedent’s estate, his interests are adverse to those of Decedent. See id. 

To the extent Appellant anticipates any of his testimony would be construed 

to be contrary to the estate’s interests, we note that every deposition (and 

cross-examination) of a defendant is intended to elicit some testimony that 

could be used against the defendant’s position.

In light of the foregoing, we conclude Appellant has not established the 

second prong of the collateral order doctrine—that he has a right too important 

to be denied review. See Pa.R.A.P. 313(b); Shearer, 177 A.3d at 853, 858-

59. Consequently, we determine Appellant’s appeal is improperly taken from 

an unappealable order, and we quash this appeal.7

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7 Although we determine this Court lacks jurisdiction to hear this appeal, we 

briefly address Appellant’s challenge to the trial court’s notation, on the face 

of the September 24, 2019, discovery order, that compliance with the order 

will not waive his claims under the Dead Man’s Act. See Order, 9/24/19; 

Appellant’s Brief at 11 n.2. We note that generally,

An objection to interrogatories or other discovery under . . . or an 

application for protective order . . . must be filed before the party 

seeking discovery has filed a motion for sanctions or other motion 

seeking to enforce compliance with the discovery request or else 

the objection or the grounds upon which the protective order is 

sought will be waived.

National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053, 1059 

(Pa.Cmwlth. 2001). Furthermore, with respect to the Dead Man’s Act, our 

Supreme Court has addressed waiver in the context of precluding an adverse 

party’s testimony: “[A] decedent’s representative waives the Act by taking the 

deposition of or requiring answers to interrogatories from an adverse party, 
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Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2020

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whether or not he places the results of such discovery on the record.” 

Schroeder, 861 A.2d at 888 (citation omitted and emphasis added).

However, we have not discovered any authority addressing the 

particular issue presented here—whether a trial court may require a personal 

representative to engage in discovery while providing a non-waiver of the 

Dead Man’s Act. Nevertheless, we reiterate that where an adverse witness 

testifies on direct examination only with respect to events that occurred after 

the decedent’s death, they do not violate the Dead Man’s Act. See Estate of 

Kofsky, 409 A.2d 1358, 1369 (Pa. 1979). The rule and its application belong 

solely to the personal representative and the trial court can neither assert or 

waive the rule on behalf of the personal representative. The effect of the 

failure to assert or waiver of the rule depends upon the circumstances upon 

which it is either asserted or waived. It cannot be stated more emphatically 

that the Dead Man’s Act does not apply to events which occur after the 

decedent’s death.