The Pennsylvania Supreme Court Sets A Standard For Pre-Complaint Discovery, DD 06/06
Defense Digest
Pennsylvania - Civil Procedure
The Pennsylvania Supreme Court Sets A Standard For Pre-Complaint Discovery - Or Should The Egg Be Permitted To Proceed The Chicken Where The Existence Of The Chicken Is In Doubt?
By John R. Warner, Esq.*
The Supreme Court of Pennsylvania, in a 3-2 decision, established a new standard for a Pre-Complaint Discovery in the case of Henry McNeil, Jr. v. Barbara McNeil Jordan and Henry A. Jordan, 2006 Pa. LEXIS 298. The issue addressed by the Court is best stated by Mr. Chief Justice Cappy in his dissenting opinion, which states that the majority holds that a plaintiff who believes that he has a cause of action to assert is entitled to subject a defendant, or a non-party, to the tools of discovery, as long as he has probable cause to believe that he will obtain information that will reveal to him or her that essential elements of their claim exist. Justice Cappy would conclude that the rules allow Pre-Complaint Discovery only to a plaintiff who knows he has sufficient reason to sue but needs additional information in order to plead his claim.
The case involves the McNeil family, of McNeil Laboratories notoriety (Tylenol, etc.), and a family squabble between a disinherited son (Henry Jr.) of the deceased President of McNeil (Henry Sr.) and his sister, Barbara, and her husband. Henry Sr., prior to his death, set up a marital trust for his wife, Lois, with remainder trusts to his children, excluding Henry Jr. The marital trust contained a general power of appointment in Lois. Henry Sr. and Henry Jr. had a very strained relationship prior to Henry Sr.'s death, which resulted in Henry Jr. being excluded from Senior's will.
Henry Jr. filed a complaint against his sister and her husband in which he contended that he had a very good relationship with his mother, Lois, but during her lifetime, his sister and her husband interfered with that relationship. He stated that Lois always intended to benefit him from the trust assets, but because of his sister's undue influence, she failed to exercise her power of appointment, and therefore, he was not included in her estate plan on an equal basis with his siblings. The value of the marital trust at the time of Lois' death was $625 million.
The defendants' preliminary objections in the nature of a demurrer to Henry Jr.'s complaint were sustained by the Trial Court without prejudice, and Henry Jr. was ordered to file an amended complaint.
Henry Jr. then sought discovery of Lois' estate planning file in order to file his amended complaint, which discovery was denied to him. But he was given 30 days to file an amended complaint. Henry Jr. failed to file an amended complaint, and the court dismissed his action. Henry Jr. appealed to the intermediate Appeals Court (Superior Court), claiming that the Trial Court wrongfully prevented him from conducting Pre-Complaint Discovery and, therefore, he could not prepare an amended complaint as ordered. The Superior Court affirmed, stating it was more persuaded by case law setting reasonable limits on Pre-Complaint Discovery then the case law permitting a more liberal allowance of such discovery. The court held that Pre-Complaint Discovery is permissible only if the plaintiff has set forth a prima facia case but, nevertheless, cannot prepare and file a proper complaint without discovery. Henry Jr. petitioned the Supreme Court to accept his appeal (not as a matter of right), and the Court granted allocatur.
The majority of the Supreme Court, speaking through Mr. Justice Baer, stated that in discovery matters the Appellate Court applies an "Abuse of Discretion" standard but that in this case, since the Superior Court held that a prima facia case must be established as a prerequisite to Pre-Complaint Discovery, it has made it a pure question of law and full appellate review should be accorded. The Court stated that Henry Jr. contends he must have the Pre-Complaint Discovery to plead a prima facia case in his complaint. The defendants in essence argue that, if he cannot plead sufficient facts to establish a prima facia case, he should not be permitted to go on a fishing expedition to determine if he has a prima facia case.
Mr. Justice Baer states: "This Court has yet to address directly the parameters of Pre-Complaint Discovery." An extensive analysis of the issue followed in the opinion.
The Pennsylvania Rules of Civil Procedure (Rule 4001 (c)) provides that a party may take discovery for, inter alia, preparation of pleadings. Rule 4007.1 provides that where a suit is commenced by Writ of Summons, and the plaintiff wishes to take a deposition then in such case, the Notice shall include a brief statement of the nature of the cause of action and the matters to be inquired into. There is an equivalent statement with respect to the service of Interrogatories, but there is no statement with respect to a request for production of documents (a defendant's remedy could be a Motion for Protective Order, but what about a non-party?)
The Court stated that the Superior Court has on only three occasions addressed the issue. In a footnote it is stated that two of the decisions were not sufficiently on point to warrant comment. The third case, a will contest, held that a proponent of Pre-Complaint Discovery must establish a prima facia case before being entitled to discovery.
The Court then went on through an analysis of Trial Court reported decisions over the past 50 years and concluded that the results were mixed but that the defendants should have the right to limit the scope of Pre-Complaint Discovery. In one case it was stated that the discovery was limited to only relevant matters and since the defendants and the Court could not determine relevancy without a complaint, Pre-Complaint Discovery was denied. In most of the cases, Pre-Complaint Discovery was narrowed or denied. Summarizing, the Court stated: "the emergent consensus in the Trial Courts of this Commonwealth holds that Pre-Complaint Discovery should be restrictively allowed, narrowly drafted, and permitted only when a Complaint capable of surviving Preliminary Objections cannot be filed without the aid of requested discovery. While we do not necessarily quarrel with the synthesis of Pennsylvania law, we note that it vests nearly unbridle discretion in the Trial Courts, and has caused much consternation, and has resulted in disallowance of almost all requests for Pre-Complaint Discovery."
The Court then stated that it was in agreement with Henry Jr. and that the Superior Court's requirement that a pleader must establish a prima facia case prior to obtaining a Pre-Complaint Discovery is too strict. And further, if a prima facia case must be known prior to Pre-Complaint Discovery, it would be tantamount to writing Pre-Complaint Discovery out of the Rules of Civil Procedure entirely.
The Court then proceeded to establish a standard and to justify it alluded to different analyses. It looked to Pennsylvania's "Dragonetti Act" 42 Pa.C.S. 8351-55 and to Connecticut doctrines, which authorized an independent action in equity for discovery designed to obtain evidence for use in a subsequent action. The Court concluded from its analysis that the standard should be "probable cause," stating that Pre-Complaint Discovery is a means to the specific end of gathering sufficient information for the filing of a complaint and it is appropriate only when there is probable cause to believe that it will achieve that end.
To implement this standard, a plaintiff should describe with reasonable detail the materials sought and state with particularity probable cause for believing the information will material advance his or her pleading, as well as averring that, but for the discovery request, he or she will be unable to formulate a legally sufficient pleading. Under no circumstances should a plaintiff be allowed to embark upon a "fishing expedition," or otherwise rely on an amorphous discovery process to detect the cause of action that he lacks probable cause to anticipate prior to the pre-complaint discovery process. The Trial Court will have to determine in the exercise of its sound discretion the reasonableness of the request given, the existence of probable cause, and the good faith of the party seeking discovery. The Court went on to state that nothing in the opinion should be construed to diminish materially the Trial Court's time-honored prerogative to evaluate pleadings and discovery requests and to fashion discovery orders in light of what it deems appropriate in a given case. The opinion states its aims to guide Trial Courts in exercising their undisputed discretion to grant or deny a Pre-Complaint Discovery request according to the exigencies of a given case. The standard should apply not only to cases involving probate issues, but to all cases in litigation.
The Court then remanded the case back to the Trial Court and directed it to assess whether Henry Jr. can establish probable cause that his requested discovery will permit the filing of a complaint capable of surviving a demurer.
Mr. Chief Justice Cappy filed a dissenting opinion. Mr. Justice Saylor wrote a concurring opinion in which he determined that Henry Jr. had pleaded sufficient facts in his first complaint and that he should be entitled to take the requested discovery to add additional facts to an amended complaint.
Even though this is a pronouncement of the Supreme Court which states it establishes a standard that is a departure from existing law, is it really much ado about nothing? Probably not. It would appear in the future that Trial Courts will be more liberal in permitting Pre-Complaint Discovery and its limits, when granted, will be less restrictive.
*John is a shareholder in our King of Prussia, PA office. He can be reached at (610) 354-8253 or jrwarner@mdwcg.com.
