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Pennsylvania’s Dead Man’s Rule – the Big Bad Wolf? Not Really.
Does Pennsylvania’s Dead Man’s Rule prevent a claimant from being paid by a Decedent’s estate for services performed pre-death when Decedent in fact paid that claimant during Decedent’s lifetime for various other services the claimant had performed? Does Pennsylvania’s Dead Man’s Rule serve generally as a serious obstacle to a claim against a Decedent’s Estate when other witnesses and documents can testify about and substantiate that claim? No.
On November 24, 2014, the Honorable John W. Herron of the Orphans’ Court Division of the Court of Common Pleas of Philadelphia County, sustained the claim of Smith Kane Holman client Dorothy Martin (“Dorothy”), in the matter of Estate of Rose Rubenstein, Deceased, Phila. O.C. No. 337DE of 2011, even though our opponents relied heavily on the Dead Man’s Rule in trying to bar Dorothy’s claim.
Pennsylvania’s Dead Man’s Rule, 42 Pa. C.S.A. § 5930, generally speaking, bars any claimant from testifying herself about interactions between the Claimant and a Decedent. In other words, after someone dies, the Dead Man’s Rule bars you from walking into a Courtroom and stating, “I loaned Decedent $20,000 cash six months before she died, and she promised to repay that money at 10% interest.” Why not? Well, the Decedent isn’t there to testify to the contrary, now is she? So it just doesn’t seem fair that someone should be able to testify about interactions with Decedent if that claimant would be the only witness.
Because the Dead Man’s Rule prevents a judge or jury from even hearing certain testimony, however, the Court system generally dislikes the Rule, and seeks to find ways to admit the challenged testimony into evidence. The idea of a trial is to get all of the evidence out there, right? So the Dead Man’s Rule, which literally keeps the mouth of a witness firmly shut, seems to go against the American legal system’s general tendency to allow all kinds of testimony into evidence and to then let the judge or jury give the testimony whatever weight they think it deserves – including no weight at all if they think that the claim is totally bogus or made up.
Among the numerous exceptions to the otherwise harsh application of the Dead Man’s Rule, for example, are:
- The Dead Man’s Rule does not prevent a claimant against an estate from testifying about all things. Instead, it only prevents a claimant from testifying about her interactions with the Decedent. Hera v. McCormick, 625 A.2d 682, 688 (Pa. Super. 1993). In other words, as happened in our case, Dorothy Martin was allowed to tell the Court about herself, including her educational background and prior work history. Dorothy could not and did not testify, however, about the services she performed for the Decedent which were the subject of her claim;
- The Dead Man’s Rule does not prevent a claimant from testifying about documents created prior to Decedent’s death which support or otherwise relate to the claimant’s claim. Larkin v. Metz, 580 A.2d 1150 (Pa. Super. 1990); Freil Estate, 16 Fiduc. Rep. 182 (O.C. Montg. 1966).
- A party otherwise entitled to assert the Dead Man’s Rule to prevent a claimant from testifying can easily and often inadvertently does waive the protections of the Rule altogether, most typically by serving either formal or informal discovery requests on a claimant whose testimony otherwise would have been barred by the Rule. See, e.g., Schroeder v. Jaquiss, 861 A.2d 885, 890 (Pa. 2004); G.J.D. v. Johnson, 669 A.2d 378 (Pa. Super. 1995), aff’d, 713 A.2d 1127 (Pa. 1998); Miller Estate, 25 Fiduc. Rep. 2d 135 (O.C. Alleg. 2005). You see, once you ask a claimant to open her mouth and speak, then you have lost your chance to ever use the Dead Man’s Rule as a basis to get her to shut up.
The case of Dorothy Martin, on its face, presented classic Dead Man’s Rule issues. After all, Dorothy asserted a claim against the Estate of Rose Rubenstein, who was dead when Dorothy first presented her claim. As you will see below in the discussion of the case, and in greater detail in the Opinion itself, (link here Audit Memorandum Herron), no Dead Man’s Rule issues presented any problems for Dorothy, because Dorothy had plenty of other evidence supporting her claim.
Dorothy was hired in the late 1980s to provide nursing services to husband and wife, Emmanuel and Rose Rubenstein (“Decedent”). After Emmanuel’s death in 1990, Dorothy continued to provide nursing services to Decedent. Shortly after her husband’s death, however, Decedent needed 24-hour nursing care and assistance. Dorothy’s duties escalated by necessity to include hiring, firing and training caregivers while continuing to provide caregiving services to Decedent herself. In the later years of Decedent’s life, Dorothy was pressed into duty to act as Agent Under the General Power of Attorney of Decedent. In that role, she handled all of Decedent’s financial obligations, ensured the maintenance and repair of Decedent’s home (in which Dorothy and the other caregivers, including Quinette Rodgers and Alice Collins, gave Decedent the very definition of tender loving care), and oversaw Decedent’s medical care, including accompanying Decedent to all of her medical appointments. Indeed, the scope of Dorothy’s duties far exceeded the role of the typical caregiver and, we argued on her behalf, were more in line with the duties of a care manager.
Although Decedent paid Dorothy a fair, if a bit low, wage for her nursing services, Decedent never compensated Dorothy for the vast realm of financial, household, and management services she provided from 1990 through Decedent’s death in 2010. Decedent suffered from dementia for many years prior to her death and, although Dorothy as Agent could have given herself a raise, Dorothy chose not to do so because it just did not seem fair to Dorothy to give herself a raise when her boss lacked the ability to understand that sort of thing. After Decedent died, Dorothy filed a claim seeking payment for the pre-death services she provided during Decedent’s lifetime.
The Administrator of the Estate denied the claim, taking the position that the payments accepted by Dorothy for her nursing services during Decedent’s lifetime barred Dorothy from being paid post-death for those wholly different services for which Decedent never compensated Dorothy. When the Administrator denied Dorothy’s claim formally in the Account he filed with the Court, Smith Kane Holman filed Objections to the Administrator’s Account on Dorothy’s behalf. Because Decedent’s will left her entire estate to several charities, the Attorney General, as parens patriae, (i.e. as watchdog for all charitable interests in Pennsylvania) joined into the litigation and worked with the Administrator in aggressively opposing Dorothy’s claim, including by taking the position that the Dead Man’s Rule barred Dorothy’s testimony entirely.
Judge Herron held a hearing on Dorothy’s Objections on May 5, 2014, and Judge Herron’s Opinion discusses at length the testimony of witnesses – including Dorothy and four additional independent witnesses – and the many documents we entered into evidence in support of Dorothy’s claim. After the hearing, we filed comprehensive post-trial briefs on Dorothy’s behalf, in which we argued that the evidence showed quite clearly that Dorothy performed extraordinary and valuable work for Decedent – work for which Decedent never did pay Dorothy during Decedent’s lifetime.
Judge Herron’s analysis of the myriad pieces of evidence that Smith Kane Holman weaved into a narrative for the Court proves that, although fiduciary litigators must always be mindful of the Dead Man’s Rule, the Rule should not prevent them from succeeding when other witnesses and evidence support their clients’ claims.
Judge Herron’s Opinion also confirms this law firm’s belief in Dorothy and the strength of her claim, and validates our many months of effort on her behalf, in the face of intense opposition from our adversaries.
By clicking on the link below, you can read the thoughtful and well-written opinion of Judge Herron, which we believe fairly and equitably resolved the complicated legal issues presented by this very unique and compelling set of facts. The world needs more people in it like Dorothy Martin, and we were honored to seek and obtain justice on her behalf.