FORTUNATO et al v. ZONA et al

Filing 84

ORDER granting in part and denying in part 80 Motion for Protective Order; granting in part and denying in part 82 Motion to Compel. Signed by Judge Joy Flowers Conti on 8/1/2012.(kjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALVIN P. FORTUNATO
individually and as Trustee of THE
REVOCABLE TRUST AGREEMENT OF
ALVIN P. FORTUNATO DATED
OCTOBER 18, 1999, ARLENE M.
FORTUNATO individually and as Trustee
of THE REVOCABLE TRUST
AGREEMENT OF ARLENE M.
FORTUNATO DATED OCTOBER 18,
1999, and DARREN J. FORTUNATO
individually and as Trustee of THE
REVOCABLE TRUST AGREEMENT OF
DARREN J. FORTUNATO DATED
OCTOBER 18, 1999,
Plaintiffs,

v.
SUSAN J. ZONA individually, as
Executrix of THE ESTATE OF JAMES E.
ZONA, and as Trustee of THE TRUST OF
JAMES E. ZONA, ANGELA ZONA
CARR an individual, and PITTSBURGH
PLASTICS MANUFACTURING INC.
a Pennsylvania corporation,
Defendants.

) CIVIL ACTION NO. 11-764
)
) JUDGE JOY FLOWERS CONTI
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER

Upon consideration of plaintiffs’ Motion to Compel and Motion for Protective
Order (ECF No. 82) and defendants’ Motion for Protective Order (ECF No. 80), the court
hereby FINDS:
(1) Defendants maintain that Pennsylvania’s Dead Man’s Act may be applicable to some or
all of the deposition testimony taken of defendants or others in this litigation and do not
waive their rights to object to any testimony offered at trial that defendants believe is
rendered incompetent by Pennsylvania’s Dead Man’s Act.

(2) Plaintiffs maintain that Pennsylvania’s Dead Man’s Act is inapplicable to testimony
offered by any defendant, is not a valid basis for defense counsel’s objection either
during depositions or during trial, and do not waive their right to oppose any assertion of
the Dead Man’s Act made by defendants.
AND NOW, this 1st day of August, 2012, upon consideration of these findings and
the above-referenced motions, such motions are denied in part and granted in part. It is
hereby ORDERED:
(1) Defendants have a standing objection based upon Pennsylvania’s Dead Man’s
Act, 42 Pa.C.S. § 5930, to any questions asked by plaintiffs’ counsel during
depositions and do not waive that objection: (i) by failing to make or repeat that
objection to specific questions proffered by plaintiffs’ counsel during depositions;
(ii) as a result of any answers given by any defendants during their depositions; or
(iii) as a result of any questions asked or answers given by any defendants at their
depositions regarding any document or other exhibit about which questions are
asked;
(2) Counsel for defendants may not instruct any witness not to answer a question or
questions proffered during a deposition, citing Pennsylvania’s Dead Man’s Act as
the basis for not answering the question(s). Objections to form and privilege are
preserved and may be made.
(3) Counsel for plaintiffs reserves, and does not waive, its right to make legal
arguments at trial in opposition to any invocation or assertion of the Dead Man’s
Act made by defendants.
(4) Counsel for defendants reserves, and does not waive, their right to make legal
arguments at trial in support of their position that any specific testimony given by
any defendant during depositions or any document testified about matters
preceding Mr. Zona’s death in such depositions are not admissible into evidence
at time of trial under the Dead Man’s Rule or constitute a waiver of said Rule, or
that any party having an adverse interest to defendants is prohibited from
testifying to any matters, statements, things or events preceding Mr. Zonas death.
(5) The depositions of defendants are being taken for discovery and not for use at
trial, without waiving the parties’ right to use said depositions in accordance with
the Federal Rules of Civil Procedure and Evidence.
(6) Both parties will have the rights at trial to raise any other evidentiary basis for
including or excluding evidence.
(7) Nothing contained in this order will preclude any party from raising or arguing
with respect to a dispositive motion or at trial, that any deposition testimony,

2

which is the subject of this order, will be admissible or inadmissible on any
evidentiary basis, including without limitation, the Dead Man’s Act.
BY THE COURT,
/s/ Joy Flowers Conti
JOY FLOWERS CONTI
District Judge

3