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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE ESTATE OF LEONARD : IN THE SUPERIOR COURT OF
BARKAN, DECEASED : PENNSYLVANIA
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APPEAL OF: ESTELLE BARKAN :
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: No. 127 EDA 2019
Appeal from the Order Entered December 10, 2018
In the Court of Common Pleas of Montgomery County Orphans’ Court at
No(s): 46-2017-X 0326
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY SHOGAN, J.: FILED NOVEMBER 1, 2019
This is an appeal from an order granting a petition to take the deposition
of Estelle Barkan, Appellant, widow of Leonard Barkan (“Decedent”).
We quash the appeal.
Decedent and Appellant, married since 1955, apparently both adopted
and fostered children throughout their marriage. They began living apart in
1988, with Appellant remaining in the marital home. Following Decedent’s
death intestate on September 22, 2016, Edith Spitzer, Decedent’s paramour
with whom Decedent resided at the time of his death, filed a petition for letters
of administration in Montgomery County on January 25, 2017, alleging she is
a creditor of Decedent’s estate. The orphans’ court appointed Appellee, Robert
H. Lefevre (“Administrator”), as the independent administrator of the estate.
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* Retired Senior Judge assigned to the Superior Court.
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The orphans’ court proceedings, currently at the discovery phase, are
regarding who is entitled to inherit from the estate and on what basis.
On November 2, 2018, Appellee Lorna Jeanette Jarrell Barkan, who lived
with Decedent and Appellant when she was a child; Appellees Kevin, Brian,
and Katelin Mihok (“Mihok Children”), the children of Lisa Mihok, who is
deceased and who lived with Decedent and Appellant as a child; and Appellee
Edith Spitzer filed a Joint Petition to Allow the Taking of Appellant’s Deposition.
Appellant filed an Answer opposing it on December 9, 2018. As noted, the
orphans’ court granted the petition for deposition on December 10, 2018, and
Appellant appealed. Appellees argue that the appeal is not from a final order
and must be quashed. The orphans’ court, as well, requests that we quash
the appeal. Orphans’ Court Opinion, 2/15/19.
It is well settled that an appeal may be taken from: (1) a final order or
an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order
as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission (Pa.R.A.P.
312, 42 Pa.C.S. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313). See In
re Estate of McAleer, 194 A.3d 587, 592 (Pa. Super. 2018) (discussing
appealability of orders). Appellant concedes that the order appealed is
interlocutory but argues it is immediately appealable by right under Pa.R.A.P.
313 as a collateral order because the order “impacts of privileges and privacy
rights” and requires her to disclose information that is barred by the Dead
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Man’s Rule. Appellant’s Brief at 8, 13.1 Appellant maintains that she and
Decedent discussed many matters including adoption and finances, which are
areas about which the orphans’ court directed Appellant to be examined in the
order for deposition. Appellant suggests that enforcement of the discovery
order would force her to disclose private and privileged information without
review. Id. at 8, 13, 16. Appellant’s brief fails to adequately develop and
support bald assertions, and it asserts general privacy claims without stating
their specific nature or identifying what rights are implicated. See, e.g.,
Appellant’s Brief at 8, 11, 17.
We conclude that the order appealed is not appealable as a collateral
order. Pa.R.A.P. 313 defines a collateral order as “an order separable from
and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b). While Appellant avers that the December
10, 2018 order is a collateral order because the orphans’ court directed
Appellant to be examined about topics that impact the attorney-client and
spousal privileges, her privacy rights, and the Dead Man’s Rule, we conclude
the order merely requires Appellant to appear for a deposition and provides a
list of topics the deposition may cover. As pointed out by Administrator, no
question has been posed that requests disclosure of allegedly privileged
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1 Appellant makes no argument that the December 10, 2018 order is
appealable pursuant to Pa.R.A.P. 311 or Pa.R.A.P. 312.
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information, no motion has been filed with the orphans’ court, no record has
been created, and no order has been entered overruling the claim of privilege
and compelling any testimony. Administrator’s Brief at 6. At this point, any
claim of privilege is speculative. Cf. CAP Glass, Inc. v. Coffman, 130 A.3d
783, 789–790 (collateral order rule satisfied where the appellant was
compelled to answer question at deposition where spousal communication
privilege was asserted in response); St. Luke’s Hosp. v. Vivan, 99 A.3d 534,
540 (Pa. Super. 2014) (collateral order rule satisfied where the trial court
overruled claims of attorney-client privilege asserted in response to questions
posed at deposition).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/19
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