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DLP overcomes Pennsylvania’s Dead Man’s Act Challenge

Today, depositions will go forward after the Defendant attempted to utilize Pennsylvania’s Dead Man’s Act to stall  a case.  The Dead Man’s Act in Pennsylvania (“the Act”)

provides, in pertinent part:  Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead,

or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in

the subject in 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 or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy. 42 Pa. Cons. Stat. Ann. § 5930.

The purpose of the Act is to prevent the injustice that may result from permitting the surviving party to the incident that gave rise to the lawsuit to testify favorably to himself

and adversely to the decedent because the decedent’s representative is unable to refute such testimony. The party challenging the competency of a witness has the burden of

proving the incompetency of the witness. Three conditions must be present in order to disqualify a witness under the Act: (1) the deceased must have had an interest in the

matter at issue; (2) the interest of the witness sought to be disqualified must be adverse; and (3) a  right of the deceased must have passed to a party of record who represents

the deceased’s interest. Weschler v. Carroll, 396 Pa. Super. 41, 45 (Pa. Super 1990)(quoting In Re Hendrickson’s Estate, 388 Pa. 39, 45 (1957).  Attorney Brian G.

Price, Bprice@dlplaw.com

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Brian Price

Brian Price / E-mail: Brian Price

Brian has been practicing law in Northeastern Pennsylvania for the past 17 years. In 2000 he became partner in Dougherty, Leventhal & Price, L.L.P. He is Board Certified in Trial Advocacy, named a Super Lawyer and sits on the Board of Governors in Philadelphia.