HomeMy WebLinkAbout07-16-08?~leil W. Yahn, Esquire
Atrornev 1.D. No. 822?R
James Smith Dietterick & C`onnel}y, LLP
°.U. I3ex 650
Flersh~y. PA 17033
?,ttonaevs for Petitioner
I_\ IZ~;:
IN THE COURT OP COIv~IM(JN PLI=.AS O~'
CUMBEKLAND COUN'T'~u', I'ENNSYLVAi~fIA
i/S ; A"['~: JF L W WOOD B. PfIILLiPS, .f i~._:
I )f,~. eas~;d
ALICE R. PHILLIPS,
Petitioner
ORPHANS' COliRT DIVISION
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i~~IJ LiL[A~I ~. f"JAL:Y. -:fir- .. `i
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A?~T% NOti~%. this _~_day of_~~_, 2~0&, i~p<,n c,~~lsider~tic>!1 o;~t':,c: wirl~~ir.
Motion in Li:nine, the Respondent is hey ~: by precluded from inr_roducing or r~lakin~ r~,fer~:nce to,
icy any way, the use of the Dead ~~Ia~~~s Statute as codified in ~2 Pa. C.S.r:. ~~) ~~) to precl~adc: the.
t'~;~ti~,ie;~ f:crrn offering testi~norry as t~ the fraad in the inducement, tailor:: to disclc;se, aYid
:lures as more fully set forth in the Petition to Set Aside Prenuptial Agreer z;,nt.
I3Y ~~i'HE COURT:
:IN THE COURT OF COMMON PLEAS
IN RE: :OF CUMBERLAND COUNTY,
PENNSYLVANIA
ESTATE OF LINWOOD B. :ORPHANS' COURT DIVISION
:NO.21-06-0122
PHILLIPS, JR.
MEMORANDUM
After reviewing the briefs submitted by Petitioner, Alice R. Phillips;
Respondent, Robert G. Frey, Executor; and Beneficiaries; this Court finds that
Respondent waived the protection of the Dead Man's Act, 42 Pa.C.S. § 5930, by
engaging the services of a private detective.
Said Private Detective conducted informal discovery at Respondent's
request. During discovery, Private Detective had conversations with various
potential witnesses who conveyed conversations and events involving Decedent
during his lifetime. This discovery, although informal, was done in preparation of
trial.
The informal discovery by Respondent was sought to refute Petitioner's
claims against the validity of the Prenuptial Agreement. As the Bolinger Court
stated, it would be inherently unfair to permit the estate to discover the bulk of
Petitioner's evidence, whether formally or informally, and then allow the estate to
utilize the Dead Man's Act as a shield. Estate of Wilford W. Bolinger, 1980 Pa. Dist.
& Cnty. Dec. LEXIS 37; 24 Pa. D. & C.3d 760.
The Pisle Court, in applying Bolinger, reasoned that "the discovery exception
to the Dead Man's Act does not depend on strict and formal action or compliance
1 of 2
under the Pennsylvania Rules of Civil Procedure regarding discovery." In Re:
Estate of Pisle, 12 Franklin 127 (1995). Here, while the acts of Private Detective did
not rise to the level of formal discovery, the course of action taken by Private
Detective was a type of informal discovery and was conducted at the behest of
Respondent. Thus, Respondent engaged in actions to trigger the exception to the
Dead Man's Act.
These cases could be distinguished from the case at bar factually, because
both above-cited cases involved informal requests for written, rather than oral,
evidence. Here, there appears to be no written evidence sought. Nonetheless, this
Court finds the reasoning in both the Bolinger and Pisle opinions persuasive and
applicable to the circumstances presently before the Court.
Therefore, for the reasons stated above, this Court hereby grants Petitioner's
Motion in Limine and thereby precludes Respondent from utilizing the Dead Man's
Act as outlined in the attached Order. _ ~.~
C. JOSEPH ~MP, P.J.
41St Judicial ist ' t
Specially Presiding
Date: July ~, 2008
cc: Neil Warner Yahn, Esquire
Robert G. Frey, Esquire
George B. Faller, Jr., Esquire
Hubert X. Gilroy, Esquire
Court Administrator (Cumberland)
Court Administrator (Perry)
File
2 of 2
ORPHANS' COURT DIVISION
COURT OF COMMON PLEAS OF
In Re: ESTATE OF LINWOOD B PHILLIPS JR
DECEASED CUMBERLAND COUNTY
PENNSYLVANIA
NO. 21-06-0122
CERTIFICATE OF SERVICE OF ORDER
ORDER DATE:
JUDGE'S INITIALS:
TIME STAMP DATE: 07/16/08
IN RIB: ORDER
SERVICE TO: NEIL W YAHN ESO HUBERT X GILROY ESO
ROBERT G FREY ESO
GEORGE B FALLER JR ESO
METHOD OF MAILING: ENVELOPES PROVIDED BY:
^ LISPS
^ RRR
^ HAND DELIVERED
[] OTHER
MAILED: 07/ 16/08
^ PETITIONER
^ JUDGE
® CLERK OF ORPHANS COURT
SERVICE TO: COURT ADMIN CUMBERLAND CO
METHOD OF MAILING:
[] LISPS
^ RRR
^ HAND DELIVERED
[] OTHER
MAILED: 07/16/08
ENVELOPES PROVIDED BY:
^ PETITIONER
^ JUDGE
^ CLERK OF ORPHANS COURT
Deputy
Clerk of Orphans' C urt