J-A03023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FIRST NATIONAL BANK WEALTH IN THE SUPERIOR COURT OF
MANAGEMENT, GUARDIAN OF THE PENNSYLVANIA
ESTATE OF G.T., A MINOR
Appellant
v.
KINDERCARE LEARNING CENTERS,
D/B/A STATE COLLEGE KINDERCARE
AND CHRIS MILEY
Appellees No. 565 MDA 2016
Appeal from the Order Entered March 9, 2016
In the Court of Common Pleas of Centre County
Civil Division at No: 2014-4296
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017
Appellant, First National Bank Wealth Management, Guardian of the
Estate of G.T. (“Appellant”), appeals from the March 9, 2016 order entered
in the Court of Common Pleas of Centre County (“trial court”) denying its
motion for a protective order and granting Appellees’, Kindercare Learning
Centers, D/B/A State College Kindercare and Chris Miley (together
“Appellees”), motion to compel. Upon review, we quash.
The trial court summarized the relevant factual background as follows.
This case involves personal injury claims brought on behalf of
[G.T.], a minor, . . . by and through [Appellant] as guardian of
the minor estate. [G.T.] was three years old at the time of the
alleged incident giving rise to this action, and is currently six
years old.
J-A03023-17
The underlying incident is alleged to have occurred on
October 3, 2013[,] at [Appellee] Kindercare Learning Centers
d/b/a State College Kindercare (“Kindercare”). [G.T.] was
enrolled at Kindercare for child care services at that time.
[Appellant] alleges that on that date, [Chris Miley (“Miley”)], a
Kindercare employee, instructed [G.T.] to take a nap. According
to [Appellant], [Miley] then determined that the child was not
lying down as instructed, and she forced [G.T.] to lay face down
on the floor by using her body weight, suffocating [G.T.] and
causing him severe injuries. [Appellant] claims that another
Kindercare employee was present and failed to intervene. [The
Bank] claims that [G.T.’s] [m]other noted visible signs of injury
when she picked him up that day, and that [G.T.] immediately
reported that a teacher had stepped on him. [Appellant] claims
that [G.T.] suffered severe physical and psychological injuries
that are ongoing and will continue into the future.
In the course of discovery, [Appellees] sought to take the
deposition of [G.T.]. [Appellees] issued a notice for [G.T.’s]
deposition for November 18, 2015. [Appellant] objects to the
deposition being taken without first having a competency hearing
and determination by the [trial court]. [Appellant] filed a
[m]otion for [p]rotective [o]rder on December 4, 2015.
[Appellees] filed a [m]otion to [c]ompel [G.T.’s] deposition on
January 15, 2016. Oral argument was heard on January 28,
2016, and the parties were given time to submit supplemental
briefs if desired. By [o]rder dated March 9, 2016, the [trial
court] granted [Appellees’] [m]otion to [c]ompel, and denied
[Appellant’s] [m]otion for [p]rotective [o]rder.
Trial Court Opinion, 6/24/16, at 2-3 (citations and footnotes omitted).
Appellant raises four issues on appeal, which we quote verbatim.
I. Whether a party may conduct the deposition of a six (6)
year old child who, by virtue of their immaturity, is
presumed to be an incompetent witness[.]
II. Whether the trial court abused its discretion by denying
[Appellant’s] motion for protective order where the
[Appellees’] noticed the deposition of a six (6) year old
child and [Appellant] sought a protective order through
which [Appellant] requested that the trial court determined
whether the child was competent to testify under oath
-2-
J-A03023-17
prior to permitting the deposition of said six (6) year old
child[.]
III. Whether the trial court abused its discretion by denying
[Appellant’s] motion for protective order whereby
[Appellant] requested that the court determine whether a
six (6) year old child was competent to testify under oath
prior to the deposition and instead permitted the
deposition to proceed and ordered defense counsel to
explore issues of competency during the deposition itself[.]
IV. Whether the deposition of a six (6) year old child is
reasonably calculated to lead to the discovery of
admissible evidence where the child’s ability to appreciate
the significance of the oath, ability to communicate and his
consciousness of the duty to speak the truth have not been
determined[.]
Appellant’s Brief at 9.
Before we can address the merits of Appellant’s claims, we must
address whether this Court has jurisdiction to hear the appeal. Appellant is
claiming that this court has jurisdiction pursuant to Pa.R.A.P. 313, which
provides that “[a]n appeal may be taken as of right from a collateral order of
an administrative agency or lower court.” Pa.R.A.P. 313. A collateral order
is one that is “[(1)] separable from and collateral to the main cause of action
where [(2)] the right involved is too important to be denied review and [(3])
the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.” Id. Moreover, “the
collateral order doctrine is to be construed narrowly, and we require every
one of its three prongs be clearly present before collateral appellate review
is allowed.” Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d
1121, 1126 (Pa. 2009) (citing Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003);
-3-
J-A03023-17
Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999)). “[I]n general,
discovery orders are not final, and are therefore unappealable.” T.M. v.
Elwyn, Inc., 950 A.2d 1050, 1056 (Pa. Super. 2008) (quoting Jones v.
Faust, 852 A.2d 1201, 1203 (Pa. Super. 2004)). “The purpose of discovery
is to expedite litigation.” Boyle v. Steiman, 631 A.2d 1025, 1031 (Pa.
Super. 1993) (citation omitted). Our courts have routinely held that the
scope of discovery is liberal. See Barrick v. Holy Spirit Hosp. of Sisters
of Christian Charity, 91 A.3d 680 (Pa. 2014). “A discovery order is
collateral only when it is separate and distinct from the underlying cause of
action.” T.M., 950 A.2d at 1056 (quoting Feldman v. Ide, 915 A.2d 1208,
1211 (Pa. Super. 2007)).
In the matter sub judice, Appellant’s claims are intertwined and can be
summarized as whether the trial court erred in denying the protective order
and permitting Appellees to depose G.T. As all three prongs of the collateral
order doctrine must be satisfied, we need only find that one of the prongs
fails in order to quash the appeal for want of jurisdiction. See Rae, 977
A.2d at 1126.
Notably, Appellant fails to satisfy the third prong of the collateral order
doctrine, that if review is postponed until final judgment in the case, the
claim will be lost.
To satisfy this element, an issue must actually be lost if review is
postponed. Orders that make a trial inconvenient for one party
or introduce potential inefficiencies, including post-trial appeals
of orders and subsequent retrials are not considered as
-4-
J-A03023-17
irreparably lost. An interest or issue must actually disappear
due to the process of trial.
Keefer v. Keefer, 741 A.2d 808, 813 (Pa. Super. 1999) (internal citations
omitted), disapproved on other grounds, Kincy v. Petro, 2 A.2d 490
(Pa. 2010). Pursuant to Pa.R.Civ.P. 4016(b)
Objections to the competency of a witness or to the competency,
relevancy, or materiality of the testimony are not waived by
failure to make them before or during the taking of the
deposition, unless the ground of the objection is one which was
known to the objecting party and which might have been
obviated or removed if made at that time.
Pa.R.Civ.P. 4016(b). Thus, Appellant has the opportunity to challenge the
competency of G.T. before or during the deposition. Therefore, the claim is
not lost.1 Similarly, if Appellant has an objection to the competency of G.T.
at trial, Appellant could raise the issue at that time. See Pa.R.Evid. 601(b).
As Appellant has failed to establish the third prong of the collateral order
doctrine, we quash the instant appeal.
____________________________________________
1
The instant mater is distinct from an interlocutory appeal of a discovery
order involving privileged information. See In re Estate of Moskowitz,
115 A.3d 372, 389 (Pa. Super. 2015) (discovery orders involving privilege
are appealable under the collateral order doctrine.)
-5-
J-A03023-17
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
-6-