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HomeMy WebLinkAbout78-0006 EQUITY TERM I ROBERT J. PULASKI, In the Court of Common Pleas of Plaintiff Cumberland County, Pennsylvania Civil Action - Equity VS. , No. Equity Term, 1978 DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski, , Defendant NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, G TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Third Floor Cumberland County Court House Carlisle, Pennsylvania 17013 Phone: 717-249-1133 MANCKE & LIGHTMAN By 36hx . Mancke, Esquire Attoxn for Plaintiff LAW OFFICES MANCKE & LIGHTMAN SUITE 1010 PAYNE SHOEMAKEII SIUILOING HARRISBURG, FA. 17108 ROBERT J. PULASKI, In the Court of Common Pleas of Plaintiff Cumberland County, Pennsylvania Civil Action-- Equity VS. No. Equity Term, 1978 DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski, Defendant C'!OMPLAINT 1. Plaintiff, Robert J. Pulaski, is an adult individual residing at 12 East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendant, Kebra K. Klinger Kyzer, is an adult individual residing at R. D. 5, Dillsburg, York County, Pennsylvania and is the Executrix of the Estate of Hazel A. Pulaski. 3. Plaintiff, Robert J. Pulaski, and Hazel A. Pulaski,: deceased, were married on November 9, 1967 and Hazel A. Pulaski passed away on May 28, 1976. 4. Plaintiff, Robert J. Pulaski, and Hazel A. Pulaski, at the time of the death of Hazel A. Pulaski, were residing together and maintained their home at 16 East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania. 5. On or about May 28, 1976 Hazel A. Pulaski died testate having named Debra K. Klinger Kyzer as Executrix and on or about June 15, 1976 the aforesaid Executrix, upon her petition to the Register of Wills of Cumberland County, was granted Letters Testamentary in the Estate of Hazel A. Pulaski. 6. Hazel A. Pulaski was buried at the Chestnut Hill Cemetery in Cumberland County, Pennsylvania in a cemetery lot purchiased and paid for by Robert J. Pulaski as indicated by the receipt which is attached hereto and made a part hereof as Exhibit "A". LAW OFFICES MANCKE & LIGHTMAN SUITE 1010 PAYNE•SHOEMAKER BUILDING HARRISBURG. PA. 17108 7. Further, Robert J. Pulaski, purchased a grave monument which was placed at the grave site of Hazel A. Pulaski which is indicated by Exhibit "B" which- is attached hereto and made a part hereof. 8. The Estate of Hazel A. Pulaski, through its Executrix, has removed the monument placed on the cemetery lot by the Plaintiff and has placed on the grave site another monument. 9. The monument which was placed on the cemetery lot by the Executrix was placed without the permission or authorization of the Plaintiff. 10. The continued existence of the monument constitutes trespass which is continuing. 11. There is no adequate remedy at law and Plaintiff will continue to suffer irreparable harm if the monument placed by the Defendant is permitted to remain at the grave site. WHEREFORE, Plaintiff requests Your Honorable Court to (a) enter an injunction preventing the Defendant from trespassing upon the cemetery lot of decedent, Hazel A. Pulaski; (b) order that the grave monument placed by the Defendant on the cemetery lot be removed; (c) prevent and enjoin the Defendant or Defendant's agents from trespassing on the grave site of Hazel A. Pulaski; and (d)- order such other remedy as the Court deems fit and proper. MANCO l IGHTMAN By Jo n B. Mancke, Esquire Att rney for Plaintiff LAW OFFICES MANCKE & LIGHTMAN SUITE 1010 PAVNE•SHOEMAKER BUILDING HARRISBURG. PA. 17106 f For Three Generations Martin L. Myers % Boyd L. Myers - Robert J.Wolf +� Viers C7uiwral 37 E. MAIN STREET MECHANICSBURG,PA. 17055 (717) 766-3421 ` - i ' Sept. 11j 1976 0* 4. Robert J, Pulaski t' One (1) Grave Cemetery Lot, Chestnut Hill Cemetery $110.00 (4) Cor. Markers (P) 40.00 9 150.00 ;w Received Payment In Full a Thank You a , 3 i EXHIBIT rg�� a i 4 ' v ° ,ri` � 311i•' , ?� s YS CONTRACT o Brachendorf Memorials S 1\p W rf HENRY J. POI Ito e y , , PHONE AREA CODE 717 234-7909 2131-2143 HERR STREET HARRISBURG, PA. 17103 ice .0,,,,� Memorial Date y ... . ........... .. .. Phone ................................ . ....... a r ........................... ... foundation In agreement with ,.f,1 ... .........PQ�.,r:!.Aft... ............... a ...... L t t E P Ir/, V•e. Street,/C3..... .1....... ................................... . .... Total city ...... �../. ........ ........................ ... � 1 +�.�.�1.��:f..�v��.. Zip Code net `. ,..ts., u.�. ..E-1 .. .. . ....................................................................................................................................... tOwner .......................................................................................... Section .................................................. Lot No s Please check lettering carefully, if in error call us at e. Material INSCRIPTION Design Lettering I ,-7 ! '�--__ `0 a Size . . length ................................ width . height Size ................................ length ................................ width ................................ height FinishTop .................................. Face .................................. Ends .................................. The said memorial is guaranteed by you against any defect in workmanship. The said memorial, with title thereto and right -)0& session thereof, shall re=dn your personal property until I have paid for it in full. In default of any payment thereun- h T Ifeenso you to repossess and remove the said memorial without guilt of trespass or other wrong, and authorize and empower . In my name and on my behalf, to apply to the management of said Cemetery or other premises for a permit for its removal to take any other steps you may deem necessary or expedient and further agree to save you harmless from and under any ry, repozzession and removal; you may then retain said memorial or dispose of it at your, own discretion without being an- -rable to me for it or for any proceeds therefrom. I will inform you herewith of any change in my address prior to -eemeut of payments the final payment hereunder. There is no agreement regarding this order other than contained . ... -h4 herein. payment; This order is not subject to cancellation after acceptance. . when the memorial is ready for Iettering; Purchaser ....................................... .f s / t................................................ d ACCEPTED: Date _. .. within ten days after.erection of said EXHIBIT 'tB" j COMMONWEALTH OF PENNSYLVANIA ) ss COUNTY OF DAUPHIN ) Personally appeared before me, a Notary Public in and for the Commonwealth and County aforesaid, the under-signed, being duly sworn according to law, deposes and says that the facts set forth in the foregoing J are true and correct. Sworn and subscribed to before me this day of� 197/ 1�bSw Harrisburg, Pa. Dauphin county (f \ �-Z. cc 00 O •r-I r-( 0 w .0 4-1 G Z z F o r w � o ani >, 4-1 PL4 Q) M A W o m d P-r +J •r1 N +1 H u _ a v 9, aW H x W o l dy W .0 W �4 N •rl a 3 0 7 O I ro aO .0 U a W " N s~ � `� :~ ro 4.J� o Y O a � o ; V > cr 0 ro -J x a. Q a I x +.) 4.J ro ;3 r� H U U z P4 q W x II Robert J. Pulaski In the Court of Common Pleas of -vs- Cumberland County, Pennsylvania No. 6 Equity 1978 Debra K. Klinger Kyzer Complaint in Equity Executrix of the Estate of Hazel A. Pulaski Robert B. Failor, Sheriff, who being duly sworn according to law, says he made diligent search and inquiry for the within named defendant to wit: Debra K. Klinger Kyzer, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of York County, Pennsylvania , to serve the within Complaint in Equity according to law. YORK COUNT RETURN: I, Oliver C. Nace, Sheriff of the County of York, Commonwealth of Pennsylvania , after diligent search and inquiry as to the defendant, Debra K. Klinger Kyzer, do hereby return Complaint in Equity, NOT FOUND, in York County. So answers: Oliver C. Nace, Sheriff of York County, Pennsylvania . York County return is hereto attached. Robert B. Failor, Sheriff, who being duly sworn according to law, says he made diligent search and inquiry for the within named defendant to wit: Debra K. Klinger Kyzer, but was unable to locate her in his bailiwick. He therefore deputized the Sheriff of Adams County, Pennsylvania , to serve the within Complaint in Equity according to law. ADAMS COUNTY RETURN: Now March 13, 1978 at 4:00 o 'clock P.M. served the within Complaint in Equity upon Debra K. Klinger Kyzer at R.D. ## 1 York Springs, Penna . by handing to her a true and attested copy of the original Complaint in. Equity and made known to her the contents thereof. So answers : Bernard V. Miller Sheriff of Adams County, Pennsylvania. Adams County return is hereto attached. She Sheriff 's Costs : So answ ✓�-�� ,,� Docketing 8.75 Service 1.20 RobeA B. Failor, Sheriff York County 17.95 Adams County 15 .65 $ 43.55 pd. by Atty. 3-20-78 Sworn and subscribed to before me this Q day of 1978, NQ'-ars P i c In The Court of CommonPleas of Cumberland County, Pennsylvania Robert J. Pulaski vs. Debra K. Klinger Kvzer, Executrix of the Estate of Hazel Al�olasU�i A. Y�o. ..... 6. ____f]��!�ity................ 19__78 Non` ...............l.eb��a�� l7-_--.., 1Q-78, I, � � D�IIR �IKl & � ����B � ��lY ��' ��., ��� r ---- hereby deputize the Sheriff of -'---'---.__������----_-_-'_.--'_. County to nxro"t this Writ, this deputation being made at the request and risk of the Plaintiff. -'--------'--'---'—'----''----' Sheriff of Cumberland County, Pa. Affidavit of Service No~' ----__----'--------._--._--.... 19..--.., at ---------------------------- o'clock -----M. served the within -,'- _-'---__'----'-----_---'_-_-'_'-__.—__-'-----___---._'__'--._'--'._.. at __ __________________________ byhanding to -''-_''--'-'-'_-.-._'_-----'-'__---__________.__.__.___.________ u copy of the original ---------------------------------------------------------- and --'--_.' ___uu6 made known to ------.--'-----------'------.-----------.- the contents thereof. So answers, --------'-'-'-----------------'' Sheriff of County, pa. COSTS Sworn and subscribed 6e6on: SERVICE ........................ $ zuethis ............ day of .................................... 1Q--..- MILEAGE ...................... AFFIDAVIT .-----' --'__---_--.--___.-'--__._'--' ........................................ ��.� r�� �� � �� 93� . _, � �, Sheriff' s Office of York County OLIVER C. NACE EDWARD C. ROBERTS SHERIFF SOLICITOR KENNETH W. LAUER GEORGENE M. PFEIFFER CHIEF DEPUTY IA* REAL ESTATE DEPUTY YORK COUNTY COURT HOUSE YORK, PA. 17401 ROBERT J. PULASKI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs DEBRA K. KLINGER KYZER ! No. 6 Equity Term, 1978 Executrix of the Estate of Hazel A. Pulaski AFFIDAVIT OF SERVICE I, Oliver C. Nace, Sheriff of the County of York, Commonwealth of Pennsylvaniav after diligent search and inquiry as to the defendant, Debra K. Klinger Kyzer, do hereby return Complaint in Equity, NOT FOUND, in York County. So answers, Sheriff's Costs $17.95 Paid 0&- 7/--,L, OLIVER C. NACE SHERIFF COUNTY OF YORK Sworn and subscribed to before me this 8th day of March, 1978. U NOTARY PUBLIC City of York, York CN Pd My Commission Expires Feb.3, 198(l In The Court of Common Pleas of Cumberland County, Pennsylvania Robert J. Pulaski VS. Debra K. Klinger Kyzer et al 6 Equity 78 No. -••-•-•-•---••--•--- ...........----------------•---••-•-----• 19---------- Now- ---------------Marc9 ----------h , 19..78, I, SHERIFF OF CUMBERLAND COUNTY, PA., do - h •- hereby deputize the Sheriff of ............Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ----•-------------------•----.-.......-......-•-------------...----•--------------- Sheriff of Cumberland County, Pa. Affidavit of Service Now- --------------------Larch--l3a-........................................ 1978-..... at -------4:00--•------- o'clock ...p'. M. served the within ----------- Complaint in Equity-- upon ....................... ebraK. Kliner K-- er ............................... ---------------------------------------------------------------------------------------------------------- at ............................. .D.#..1. York Springs, Penna. ------------------•------....----------------- .......................................... byhanding to ....her•-----•-•---•---••-----...----•--•-•---•-----•-•--•--•-•----•--•---•--•..................... ..........................•-------------•----------------- a true and attested copy of the original .-----0MA 3A.7.n t------------------------------- and made known to -------------------hQr-----••----•......-•.............-------- ------------------------------- the contents thereof. So answers, Sheriff of County, Pa. COSTS Sworn and subscribed before SERVICE ........................ $ 8.75 me this 14 day of ..............March----•••.. 19..?$ MILEAGE 5.110 j AFFIDAVIT ------------------ 1.50 n,awes,xt ►«n.,sy P(Ii� $ 15.65WhIRM . a ADAMS COMM,PA. Form D-4 My COMWONON pPOM oec IS,197p, PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY Please list the following case: (Check one) ( ) for JURY trial at the next term of civil court. ( X ) for trial without a jury. ---------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) ( ) Assumpsit ( ) Trespass ( ) Trespass (Motor Vehicle) ROBERT J . PULASKI (X ) IN EQUITY (other) (Plaintiff) VS. DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski (Defendant) r.s 7T '` vs. NM CX' C=) — s .z rn �� No. 6 Civil Equity 19 78 Indicate the attorney who will try case for the party who files this praecipe: John B, Mancke , Esq . Indicate trial counsel for other parties if known: _- Richard C , Snelbaker ,, Esquire This case is ready for trial. Signed: � L-- Print Name: hn B , Mancke , Enquire Date: April 1 , 1980 Attorney for: aintiff ROBERT J. PULASKI, In the Court of Common Pleas of Plaintiff Cumberland County, Pennsylvania Civil Action - Equity VS. DEBRA K. KLINGER KYZER, No. 6 Equity Term, 1978 Executrix of the Estate of Hazel A. Pulaski, Defendant ANSWER 1. It is admitted that Plaintiff may have resided at the address stated in the Complaint at the time of the filing of the Complaint. It is denied that he continues to reside at said address ; Defendant is unaware of the Plaintiff's residence or whereabouts. 2. The averments of Paragraph 2 of the Complaint are admitted as of the time of the filing of the Complaint. It is averred that Defend- ant's residence has changed to the present location of R. D. 1, York Springs, Pennsylvania. 3. Admitted. 4. Admitted. 5. Admitted. 6. It is admitted that the said Hazel A. Pulaski was buried at Chestnut Hill Cemetery; however, it is denied that said lot was purchased by Plaintiff. On the contrary, it is averred that Defendant made the purchase of said lot. Although Plaintiff may have made payment to Myers Funeral Home for a cemetery lot, Defendant after reasonable investigation is unable to determine the identity of said lot as being the lot in which the decedent's remains are interred, and LAW OFFICES SNELBAKER, proof thereof is demanded at the trial of the case. Further, if said McCALEB & ELICKER payment was made for the lot arranged for by Defendant,Defendant on behalf of decedent's estate stands ready to reimburse Plaintiff for the advancement made on behalf of the estate. 7. Admitted. 8. Admitted. 9. Admitted. However, it is averred by way of further answer that Plaintiff's permission or authorization to place said monument was not required for the reasons averred in Paragraph 6 and In the New Matter below. 10. Paragraph 10 is a conclusion of law which requires no response. However, Defendant denies that her placement of the monument constituted a trespass, it being averred that the lot in question is the Lot purchased by the decedent's estate and not owned by Plaintiff. 11. Paragraph 11 is a conclusion of law which requires no response. However, Defendant denies that any wrong has been committed which requires any remedy to correct, it being averred that no trespass or other actionable wrong has been sustained by Plaintiff, said lot in question being the lot purchased by the decedent's estate and not owned by the Plaintiff. NEW MATTER The Defendant avers the following additional facts in further defense of this matter: 12. At the time of the making of the funeral arrangements, the decedent's Estate, acting by and through Defendant made and arranged LAW OFFICES for the purchase of the lot at Chestnut Hill Cemetery in which the SNELBAKER. McCALEB & ELICKER decedent's remains are interred. -2- 13. The decedent's Estate is the owner of the cemetery lot in question with the exclusive rights of interment therein. 14. The decedent's Estate arranged and paid for all funeral services including the preparation of the grave site through Myers Funeral Home, Mechanicsburg, Pennsylvania. WHEREFORE Defendant respectfully prays your Honorable Court to dismiss Plaintiff's Complaint and enter judgment in favor of Defendant and against Plaintiff. SNELB Mc `&--ELICKE By Attorneys for Defendant COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF CUMBERLAND ) DEBRA K KLINGER KYZER being duly sworn according to law deposes and says that she is the Executrix of the Estate of Hazel A. Pulaski and the Defendant herein, and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of her knowledge, information and belief. 1. Debra K. Klinger yzer Sworn to and subscribed before me this day of /u N� 19 JO FLORENCE B. LOSCHER, NOTARY PUBLIC MECHANICSBURG BOROUGH CUMBERLAND COUNTY --- LAW OFFICES MY COMMISSR)N EXPIRES APR, 6, 1982 SNELBAKER, MCCALEB & ELICKER -3- CXv o�`?> N N L a- t L-j W ti 2 -+ 4-J4-4 r� Ln Cd U) � U) W U Ed wrrii O 4J O rd N •ri rdd W � U 0 O a) —4 0 rd 4-J3 n cd U rid [` -4 a •rird aJ cd H rd W w Z U) cd W � i~ 0 td 0, N Z N ti a m z r- 00 r-4 N 4-J 4-1 Q H •'1 � / � aJ w a) (,b ° G r� pa U) v x 44 rd 0 �4 LH w o v a rn A x w Ca 'r-i v a v c2i aJ W a W P4 4-J -I i waoQ 1:4 Q) ozo � aq C/) w l �:D -4 Cl) v a, w z' QUo P- U --J m w O w u 3 �4 o ' z ¢ z a-J w SA a Z cd 04 H w 4-r a) � H 4-4 -4 W(�.� H H •v a Q +� r. Q1 � 4 U z w a 0 H f� w a O d 3 w r] p v r U U] U w w o > x w cn >~ c� v p v •ri a) >, a 0 4-iU d a X Zcd H H � a) 9 ' U cd N w Fpq � rd •� •*rl `4 .� <4 w O W LH �' 4-' tri •> P4 Q U W Z Z w ° 3v �u � uw u � ori Cl) z ° � ¢ z 41 aJ P� a) N r d rd v N a U ,r, OJ ra LD O w X cd •ri ::j Cd 41 i; 4J .Q •H P4 q W x cd O aJ +- O rci �j W r:� ri O - HR 4-1 -M z w H U W U t ROBERT J. PULASKI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DEBRA K. KLINGER KYZER, No. 6 EQUITY 1978 Executrix of the Estate of Hazel A. Pulaski IN RE: PRETRIAL CONFERENCE At a pretrial conference held June 12, 1980, before the Honorable George E. Hoffer, Judge, present for the plaintiff was John Mancke, Esquire, and for the defendant, Richard Snelbaker, Esquire. This is a non-jury trial estimated to take one-half day to try. The plaintiff, the husband of the decedent, is suing the executrix of the estate claiming that executrix has moved and replaced the original stone marker that the plaintiff husband placed on the decedent' s grave. The husband is asking the court to restore the stone monument, which he purchased, to the grave site, and asking further that the court order the executrix-defendant to remove the scone that she placed on the lot. The only factual issue to be determined at trial is: who owns the grave site. Trial of the case is s or July 11, 1980, at 1 :30 p.m. Ge ge . Hoffer, John Mancke, Esquire For the Plaintiff Richard Snelbaker, Esquire For the Defendant :cfd ROBERT J. PULASKI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Civil Action - Equity VS . DEBRA K. KLINGER KYZER, No. 6 Equity Term, 1978 Executrix of the Estate of Hazel A. Pulaski , ANSWER TO NEW MATTER 12. Denied as stated. The arrangements as to the burial at Chestnut Hill Cemetery were performed only after approval of the Plaintiff. 13. Denied. It is denied that the decedent ' s estate is the owner of the cemetery lot in question with the exclusive rights of interment therein. It is averred, on the other hand, that the Plaintiff purchased and paid for the cemetery lot . 14. Denied as stated. It is averred that the decedent ' s children arranged for the funeral services but that Plaintiff was without sufficient knowledge to know whether those services had been paid for. It is further averred that the Plaintiff paid for the markers and the grave site , WHEREFORE ,Plaintiff prays Your Honorable Court to enter judgment in his favor . MANCKE & LIGHTMAN LAW OFFICES B' MANCKE & LIGHTMAN Y SUITE 1300 Jo B , anc e, Esquire `A""`I.o`Box`oa=`°'"` Atttfney for Plaintiff HARRISBURG,PA.17108 COMMONWEALTH OF PENNSYLVANIA: SS COUNTY OF DAUPHIN Personally appeared before me, a Notary Public in and for the Commonwealth and County aforesaid, the under- signed, being duly sworn according to law, deposes and says that the facts set forth in the foregoing Z141P,5 we are true and correct. Sworn and subscribed to before me this day of- 19 f 19 �I1cDonald, Note►Y public MY �pmmission empires aar 1?83 T)eUphin `punt" k>- coo ©oma» � 2--03 w-r Gco< »gin» p C:, C\j 25- ui e� tj% dI® � 9 zm o» � / � ' o r / r & / Z « < c o Q m m % m I o / G w4 o - bw � k � / « I m q \ j § LH U @ m & a y � � � ) \ o b u a S 4@ m % M = Q v * �D w / \ w x § $ § q H \ F4 4-3 wE v / C7, y / & k $ _ b \ � \ I � / / � U 2 Q § \ q q / § RU 3 « qm $ a x� 1 >}� SNELBAKER, MC CALEB & ELICKER 4 A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG,PENNSYLVANIA 17055 P.O.BOX 318 717 697-8528 July 15, 1980 Honorable George E. Hoffer Cumberland County Court House Carlisle, Pennsylvania 17013 Re: Estate of Hazel A. Pulaski, Deceased Dear Judge Hoffer: This letter-memorandum is submitted in keeping with your allowance at the hearing held on Friday, July 11, 1980. The Defendant requested leave to submit this additional information at the time of the hearing because of the Plaintiff's basis of claim as viewed under the actual facts produced at the hearing. Plaintiff has contended that his right to choose, install and main- tain a grave marker was based upon his relationship as spouse. He cites various cases vesting burial (as distinguished from lot ownership, main- tenance and marker installation) rights in the family of the decedent. Although Defendant continues to maintain that the decedent's estate owns the grave site and, under prevailing Pennsylvania Law, has the right to place the monument on the site, the evidence at the hearing clearly shows that any spousal rights were indeed forfeited by Plaintiff by his failure to exercise those which he claims to have. At the hearing, it was clearly established that all of the funeral and burial arrangements were made by the Defendant and her two uncles (the brothers of the decedent) . Whether acting in her capacity as executrix of her late mother's will or as the daughter of the decedent, Defendant was no stranger to the situation and was certainly well-known to Plaintiff. It is evident, if not admitted by Plaintiff, that he simply abandoned any interest in the matter of making funeral arrangements and accepted those as made by the Defendant. Defendant's efforts included picking the casket and vault, arranging for the funeral service at the decedent's church and, more importantly to this case, selected the cemetery and the grave site therein. Regardless of his reasons, Plaintiff simply avoided the exercise of these rights which he now contends he had. Not only did Plaintiff not actively parti- cipate in the planning, but he admits making no objections thereto at any time. Moreover, the uncontradicted evidence of record shows that he was pleased with the arrangements made and expressed his disinterest by his words to the effect that he would not pay for any of the arrangements. SNELBAKER, Mc CALEB & ELICKER Honorable George E. Hoffer July 15, 1980 Page 2 Plaintiff's first indication of interest came months after the decedent's burial when he placed a monument on the grave site. Without knowing of each other's plans, both parties ordered grave markers , although Plaintiff's marker was delivered to the grave site first. Defendant testified that she was unaware of Plaintiff's marker until hers was delivered to the site at which time she exercised her right of ownership of the grave and had hers installed and Plaintiff's removed. Under these circumstances, Plaintiff should not be permitted to argue spousal rights with any degree of success. Having abandoned any interest in his wife's funeral, he should not now be allowed to claim the extension of those rights to the placement of a grave marker. Whether he waived any legal rights or simply delegated them to his step-daughter, the Defendant, he should not be permitted in this Equity suit to now come forward and attempt to cancel his former decision merely on the basis that he has some alleged predominant right to supervise the decedent's funeral. At some point, arrangements must be finalized. Defendant accepted and performed this responsibility without objection from Plaintiff. The finality of the arrangements should be resolved in favor of those who undertook the responsi- bility particularly where others having equal or greater interest have chosen for whatever reasons to not participate. If Plaintiff had the right as he contends, he should be deemed to have waived it by virtue of his inaction through all of the various steps in the funeral and burial process. His testimony in Court clearly indicated that he was not dissatisfied with the arrangements made and affirmatively agreed with the desirability of the grave site. Having failed to exercise his alleged rights and permitting the arrangements to be consummated, certainly constitutes a waiver of whatever rights he may have had at that time. We believe that he has also impliedly delegated whatever rights he may have had to Defendant and subsequently ratified the actions which she performed. His lack of participation and especially his lack of objection for arrangements which he must surely have known to be in progress would constitute a delegation of whatever authority he had to Defendant. His subsequent expressions of being satisfied with the arrangements and not intending to pay for them amounts to a simple ratification of whatever authority he may have attempted to delegate to Defendant. However the legal rationale may be styled, it is clear that Plaintiff totally accepted the arrangements made and should not now be heard after the fact. The Defendant continues to maintain her position of being the owner of the grave site and that as such owner she has the corresponding right to determine what monument will be installed and to maintain the same accord- ing to her discretion. The memorandum submitted at the time of the hearing is incorporated herein by reference and reaffirmed. The foregoing discussion concerning family rights in the funeral process is merely supplementary to SNELBAKER, Mc CALEB & ELICKER Honorable George E. Hoffer July 15, 1980 Page 3 the original brief as filed and is not deemed to be a change of position other than to add to Defendant's position the arguments concerning the family rights. eryr ru y "rs, ,LQ�i L ` Richard C. Snelbaker RCS/f1 CC: John B. Mancke, Esquire Mancke & Lightman P. 0. Box 1082 Harrisburg, PA 17108 ROBERT J. PULASKI, IN THE COURT OF COZVMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENINSYLVANIA V. , DEB,Rk K. KLINGER KYZER, , Executrix of the Estate of , Hazel A. Pulaski, NO. 6 EQUITY 1978 Defendant IN RE: DECISION OF THE COURT Before HOFFER, J. DECREE NISI AND NOW, this 5th day of Novembex 1980, in accordance with the adjudication filed this date, it is hereby ORDERED, ADJUDICATED, AND DECREED that the defendant: 1. Remove the grave monument she placed on the cemetery lot of Hazel A. Pulaski. 2. Return the grave monument erected upon the said site by the plaintiff to its original placement. 3. Refrain from further disturbing the plaintiff' s monument in the future. The prothonotary shall enter this Decree Nisi and give notice to the parties or their counsel. If no exceptions are filed within ten (10) days, the decree, upon praecipe, shall be entered by the prothonotary as a final decree. NO. 6 EQUITY 1978 By the Court, 0OM Nr 1 4le-\ or e E. of John B. Mancke, Esquire C'_ For the Plaintiff / Richard C. Snelbaker, Esquire For the Defendant :ssg -2- ROBERT J. PULASKI, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. DEBRA K. KLINGER KYZER, NO. 6 EQUITY 1978 Executrix of the Estate of Hazel A. Pulaski, Defendant IN RE: DECISION OF THE COURT Before HOFFER, J. OPINION AND DECREE NISI HISTORY On May 28, 1976, Hazel A. Pulaski died testate leaving the defendant, her daughter from a prior marriage, as executrix of her estate. Also surviving Mrs. Pulaski was her husband, the plain- tiff. The defendant and her two uncles made the funeral arrangements. As required by the decedent' s will, the defendant paid the funeral home for its services in her role as executrix. On June 17, 1977, the plaintiff purchased a monument for Mrs. Pulaski' s grave which was engraved "Hazel A. Pulaski" and placed it upon the grave site. Shortly afterwards, the defendant removed this stone marker and replaced it with a monument that was engraved with the name "Hazel A. Klinger. " On February 17, 1978, the plaintiff NO. 6 EQUITY 1978 sued the defendant in equity and requested this court to (a) enter an injunction preventing the defendant from trespassing upon the cemetery lot of the decedent, Hazel A. Pulaski; (b) order that the grave monument placed by the defendant on the cemetery lot be removed; (c) prevent and enjoin the defendant or the defendant's agents from trespassing on the grave site; and (d) order such other remedy as the court deems fit and proper. From the testimony presented at the hearing on July 11, 1980 , we make the following: FINDINGS OF FACT 1. The plaintiff, Robert J. Pulaski, is an adult individual who resided at 12 East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania at the time of filing of his Complaint. 2. The defendant, Debra K. Klinger Kyzer, is an adult individual who currently resides at R.D. 1, York Springs, Pennsylvania, and is the executrix of the estate of Hazel A. Pulaski. 3. Robert J. Pulaski and Hazel A. Pulaski were married on November 11, 1967. 4. Hazel A. Pulaski died on May 28, 1976 , at which time she and the plaintiff were residing together and maintaining their home at 16 East Keller Street, Mechanicsburg, Cumberland County, Pennsylvania. 5. Hazel A. Pulaski died testate, having named the defendant as executrix; on or about June 15, 1976 , the executrix was granted Letters Testamentary in the Estate of Hazel A. Pulaski upon the defendant' s petition to the Register of Mills of Cumberland -2- NO. 6 ]EQUITY 1978 County. 6. The decedent' s will specifically requires the executrix to pay all her just debts and funeral expenses. 7. The defendant and her uncles made arrangements for the decedent's burial at Chestnut Hill Cemetery in Cumberland County, Pennsylvania, where the decedent was buried after the plaintiff's approval of the cemetery site. 8 . The defendant, as executrix, paid $1833.40 to Martin L. Myers Funeral Home on November 9, 1978 , for funeral services provided. 9 . The plaintiff paid $150 on September 11, 1976, for one cemetery lot (and four corner markers) at Chestnut Hill Cemetery. 10. On November 17, 1977, the plaintiff purchased a grave monument which he placed at the grave site of Hazel A. Pulaski. 11. Shortly afterwards, the defendant removed the monu- ment placed on the lot by the plaintiff and placed another monument on the grave site. 12. The monument placed on the cemetery lot by the defendant was placed without the plaintiff' s knowledge or permission. DISCUSSION It has long been held that the "primary and paramount right to possession and custody of a body and to control the burial or disposition thereof is in the surviving spouse and not in the children or next of kin, . . Leschey v. Leschey, 374 Pa. 350, -3- NO. 6 EQUITY 1978 353, 97 A.2d 784, 786 (1953) . In a seminal case discussing the rights involved as to place and manner of burial, Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878 (1904) , the court stated: [I] t may be laid down first, that the paramount right is in the surviving hus- band or widow, and if the parties were living in the normal relations of marriage it will require a very strong case to justify a court in interfering with the wish of the survivor. Secondly, if there is no surviving hus- band or wife, the right is in the next of kin in the order of their relation to the decedent, . Id. at 319, 56 Atl. at 880. The preference given a surviving spouse stems from the view that the relationship between the husband and wife is the closest family tie. Leschey v. Leschey, supra. In this case, the plaintiff, as the decedent' s sur- viving husband, has the primary right of burial. From this right of burial, and the facts of this case, we find he also has the right to erect a tombstone upon his wife' s grave. "The right to bury includes the right to erect a headstone at the grave. " Simon v. Urbach Monumental Works, 107 Pitt L.J. 62, 64 (1959) . During the hearing, both parties claimed they had ownership of the cemetery lot where Mrs. Pulaski is buried, thus giving each the right to select and install the grave marker. Here, this is not the pivotal issue. In cases involving burial rights, the relationships between the parties and the decedent play the dominant role and less attention is given to the principles of property -4- NO. 6 EQUITY 1978 ownership. As the court in Detrick v. Koehler, 62 D. &.C. 2d 470 (Northampton, 1968) , stated: The respective rights of parties relating to the custody and disposal of the remains of the dead rest upon principles of law distinct and peculiar unto themselves. As was stated in Fox v. Gordon [sic] , 16 Phila. 185: Ques- tions which relate to the custody and disposal of the remains of the dead do not depend upon the principles which regulate the possession and ownership of property, but upon considera- tions arising partly out of the domestic re- lations, the duties and obligations which arise from family relationship and ties of blood; . . . . ' The tendency of the courts to break away from a common law distinction between property and personal rights, especially regarding the ques- tion involved in this case, is recognized in Pettigrew v. Pettigrew [sic] , 207 Pa. 313. Id. at 472-3, quoting Block v. Dar Nebo Cemetery Company, 14 D. &.C. 237, 237-8 (Phila. , 1930) . This is not to say that ownership of the lot is not important, but, with respect to the particular facts of this case, we find ownership is not the controlling element. Here, the lot was not purchased until after Mrs. Pulaski ' s death and thus was intended for her specific burial. Whether the plaintiff or the defendant actually purchased the lot, the decedent' s will specifically required the executrix to reimburse the purchaser from funds of the estate. (Petitioner' s Exhibit No. 5) . From this provision of the will, the defendant claims that she is the sole legal representative of the grave site and thus has the only legal right to choose and install a grave marker. -5- J NO. 6 EQUITY 1978 Notwithstanding such an argument, the defendant did .not gain any of the plaintiff' s burial rights when fulfilling her duties as executrix and paying for the funeral expenses . "The burial of the dead in this state is not one of the statutory rights and dzties of the executors and administrators. The duty of the executor is primarily one of payment, that is, of auditing and paying the ex- penses of such burial. " Hodge v. Cameron, 132 Pa. Superior Ct. 1, 11, 200 Atl. 238 , 243 (1938) . In that case, the executor had also been expressly delegated the duty to pay all funeral expenses. The executor argued that this obligation gave him the superior right to select the undertaker over the rights of the next of kin. In holding that the duty and right of burial were quite different, the court held that the wishes of the surviving spouse or next of kin as to the place and manner of burial could not be disregarded by the court in favor of the administrator's wishes. Thus, since the cost of a tombstone or monument is a proper funeral expense chargeable to the estate, In re Kreeger' s Estate, 227 Pa. 326 , 76 Atl. 24 (1923) , the defendant has the duty to pay for such an expense but the plaintiff has the right to select the tombstone in this case. A second issue raised at the hearing was whether the plaintiff had waived the right to select and install the tombstone by his failure to be involved in the making of the funeral arrange- ments. We have found that the defendant and her two uncles had made all the funeral arrangements and that the plaintiff had not assisted in these decisions except for approving the defendant 's selection of -6- NO. 6 EQUITY 1978 the cemetery. The defendant claims such behavior constitutes abandon- ment of all the plaintiff' s rights of burial with respect to the decedent. However, the plaintiff ' s lack of participation was the result of the defendant's exclusion of the plaintiff from such decisions and not a waiver of his rights . The defendant never desired the plaintiff' s opinion nor asked him to participate. Even without such exclusion, it would be difficult to find the plaintiff' s quiet ac- quiescence to the defendant's arrangements constituted a waiver of any of his remaining rights. In Puller v. New Kolland Cemetery Association, 14 D. &.C.2d. 735 (York L.R. , 1958) , the court held that the failure to object at the time of the burial could not waive the rights of the surviving spouse since such rights are of a paramount nature. Instead, the waiver would have to be much more explicit. Thus, we find the plaintiff' s right to select and install a grave marker not to have been waived. CONCLUSIONS OF LAW 1. The court has jurisdiction" cver the parties and the subject matter of this case. 2. The plaintiff, as the surviving spouse, has the primary right to select and install a grave marker upon the decedent's grave. 3. The plaintiff did not waive his rights of burial with respect to the decedent. DECREE NISI AND NOW, this 5th day of Nove I obEir,1980, in accordance with -7- NO. 6 EQUITY 1978 the adjudication filed this date, it is hereby ORDERED, ADJUDICATED, AND DECREED that the defendant: 1. Remove the grave monument she placed on the cemetery lot of Hazel A. Pulaski. 2. Return the grave monument erected upon the said site by the plaintiff to its original placement. 3. Refrain from further disturbing the plaintiff' s monument in the future. The prothonotary shall enter this Decree Nisi and give notice to the parties or their counsel. If no exceptions are filed within ten (10) days , the decree, upon praecipe, shall be entered by the prothonotary as a final decree. By the Court, /s/ George E. Hoffer, J. John B. Mancke, Esquire For the Plaintiff Richard C. Snelbaker, Esquire For the Defendant :ssg _g_ I i ROBERT J . PULASKI IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA vs . NO . 6 EQUITY 1978 DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski PLAINTIFF' S MEMORANDUM I. FACTS AND HISTORY This case arises from the tragic death of Hazel A. Pulaski , who was murdered on May 28 , 1976 . The decedent was married to the plaintiff on November 9 , 1967 , and the couple had resided at 16 East Keller Street , Mechanicsburg , at the time of her death. The Plaintiff, Robert J . Pulaski , as husband , purchased a cemetery lot at the Chestnut Hill Cemetery for the purpose of the burial of his deceased wife . The purchase was made through the Myers Funeral Home in Mechanicsburg. Subsequently , the Plaintiff arranged for a memorial stone to be placed on the site . The arrangements were made through Brachendorf Memorials of Harrisburg. The memorial with the name of the decedent as "Hazel A, Pulaski" was placed on the memorial and on the lot . LAW OFFICES MAN CKE 9 LIGHTMAN HARRISBURG,RA.17108 Unfortunately, the children of the decedent began a syste- matic attempt of harassing the Plaintiff. The Plaintiff was 1 accused of murdering his wife , his wedding picture was destroyed and the plaintiff' s life became so intolerable that he had to leave the area. The defendant 's estate , through its Executrix, removed the monument that the plaintiff had placed at the gravesite. The defendant then replaced the monument with one which omitted any reference to the name "Pulaski. " The plaintiff then instituted an action in equity. II . LEGAL PRINCIPLES 1. The paramount right as to the burial of the dead is in the spouse , See , Pettigrew v. Pettigrew, 207 Pa, 313 (19U4) ; S ip ey Estate , 49 D&C 331 (1970) . The Supreme Court has stated: Subject to this general result it may be laid down first , that the paramount right is in the surviving husband or widow, and if the parties were living in the normal relations of marriage it will require a very strong case to justify a court inter- fering with the wish of the survivor. Pettigrew v. Pettigrew, 207 Pa. 313 at 319 (1904) , In Shipley Estate , 49 D&C 2d 331 (Erie 1970) , the law was summarized as follows : "The paramount right as to the burial of the dead is in the spouse ; second in the next of kin in the order of their LAW OFFICES MANCKE 8 LIGHTMAN 1. The only one charged with the murder was a stepson, Denis PA.NE=oE1:KEaa1lLo,NG Klinger, who was acquitted in Perry County Courts and then P.o Box lo82 HARRIS B U RG,PA.17108 subsequently charged with perjury of his testimony during the trial, a relation; and third, the desires of the decedent may or may not prevail against those of the spouse, but usually will prevail over the next of kin: " 3 Hunter, Pa. Orphan' s Court , funeral § 3 (1959) . It seems clear that under the law a surviving spouse's desires as to burial will be honored over those of all other survivors . "The reason for the preference given to the surviving spouse in the matter of interment or reinterment unquestionably is founded upon the relationship between husband and wife as the closest family tie : " Leschey v. Leschey, 374 Pa. 350 , 354, 355 The removal of the stone by the defendant and the changing of the name on the tombstone constitutes a trespass as well as defacement of the gravesite giving a right to the defendant to 2 bring an action to correct the unfortunate situation , See , Hetrick v. Koehler, 62 D&C 2d 470 (North, 1968) . Even the Executrix cannot negate burial arrangements made in good faith by the husband. Cf. Hodge v. Cameron, 132 Pa. Super. 1, Respectfully submitted, MANCK & LIGHTMAN By n 4Manc , Esquire A torney for Plaintiff LAW OFFICES MANCKE 9 LIGHTMAN "INE SNOEMAREF IUILD(NG F.o.BOX108= 2 . In fact the action probably constitutes a crime. See, HARRISBURG,PA.17108 18 Pa. C . S .A. § 5598 , c� v 4-4 w � O o v wc7j z Q OD F P-4 00m o O U ?,d H � W N Ur m N Q J-) r-4 �21 fy- N -H V o (r p LH O C7 +J cxn v) � J w a o O P, r-a C. [d - O 0 F f m d-) U 4J � H LH rl W 3 o o m rC P-1 � O � H g W m a (_n U ted h J •x U H 0 a � S Q) f2r-1 4J I W U N Pa PQ N H U S 0 q W x f ROBERT J. PULASKI , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. No. 6 EQUITY 1978 DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski PLAINTIFF'S SUPPLEMENTAL MEMORANDUM I. Legal Principle No formal deed is necessary to confer the exclusive right to the use of a cemetary lot for burial purposes. Hughes v. Harden, 194 Okla. 307 , 151 P. 2d 425 (1944) . In Hughes v. Harden, 194 Okla. 307 , 151 P. 2d 425 (1944) , the Court, in order to determine the ownership of a cemetary lot held: "The fact that Plaintiff received no deed or other formal evidence of title did not lessen his right to the exclu- sive use of the lot as and when he might desire to bury his dead there. " The Court further noted, citing in 14 C.J.S. Cemetaries, p. 84, §24: "No formal deed is necessary to confer the exclusive right to the use of a lot in a cemetary for burial purposes. " See also Billings v. Paine, 319 S.W. 2d 653 (1959) . Similarly, in Maniwitz v. Chevra Ahawath Abraham BInai Kolo, 87 NY S. 2d 740 (1949) , the Court held that an informal LAW OFFICES handwritten receipt from the corporation that owned the cemetary MANCKE @ LIGHTMAN SUITE 1300 PAVNE 5 OEMAXER BUILDING P.O.BOX I063 HARRISBURG,PA.17108 indicating that the purchaser had paid the costs for the grave- site was sufficient evidence of ownership to sustain the finding of a continuing trespass when the purchaser discovered that the gravesite was occupied. In Billings v. Paine, 319 S.W. 2d 653 (1959) , the Court, holding that a certificate of sale was sufficient to establish ownership, held: "It seems clear that the conveyance or transfer of a cemetary lot. . . does not constitute the conveyance of a fee simple absolute, and that the instrument need not of necessity, comply with the formalities of a deed of real estate generally. " See also, Gallagher v. Trustees of Cherry Hill Methodist, Md. 399 A. 2d 936 (1979) at 941 (footnote #5) . Thus, the Plaintiff is not required to produce a deed to establish his ownership to the gravesite, and the written re- ceipt that he had paid for the gravesite is sufficient to estab- lish his right of ownership to the site. The evidence at the hearing indicated that Robert Pulaski paid for the lot on which his wife us buried. The evi- dence also revealed that the Estate did not pay for it or even receive a bill for it. The Plaintiff' s right to relief can not be denied. Respectfully submitted, MANCK & LIGHTMAN LAW OFFICES By LLt— MANCKE 8 LIGHTMAN JT n B. Mancke, Esquire 00 PANE SHOEM::E..0 LING Att ney for Plaintiff F.O.SOX 1082 HARRISBURG,PA.17108 i ROBERT J. PULASKI, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. No. 6 EQUITY 1978 DEBRA K. KLINGER KYZER, Executrix of the Estate of Hazel A. Pulaski PLAINTIFF'S SUPPLEMENTAL MEMORANDUM I. Legal Principle No formal deed is necessary to confer the exclusive right to the use of a cemetary lot for burial purposes. Hughes v. Harden, 194 Okla. 307 , 151 P. 2d 425 (1944) . In Hughes v. Harden, 194 Okla. 307, 151 P. 2d 425 (1944) , the Court, in order to determine the ownership of a cemetary lot held: "The fact that Plaintiff received no deed or other formal evidence of title did not lessen his right to the exclu- sive use of the lot as and when he might desire to bury his dead there. " The Court further noted, citing in 14 C.J.S. Cemetaries, p. 84, §24: "No formal deed is necessary to confer the exclusive right to the use of a lot in a cemetary for burial purposes. " See also Billings v. Paine, 319 S.W. 2d 653 (1959) . Similarly, in Maniwitz v. Chevra Ahawath Abraham B'nai Kolo, 87 NY S.2d 740 (1949) , the Court held that an informal L.wo,,,ce, handwritten receipt from the corporation that owned the cemetary MANCKE B LIGHTMAN surrc iwo .•r rr..rr oaw•.c..unmwo HARRISBURG,PA.17108 indicating that the purchaser had paid the costs for the grave- site was sufficient evidence of ownership to sustain the finding of a continuing trespass when the purchaser discovered that the gravesite was occupied. In Billings v. Paine, 319 S.W. 2d 653 (1959) , the Court, _ holding that a certificate of sale was sufficient to establish ownership, held: "It seems clear that the conveyance or transfer of a cemetary lot. . . does not constitute the conveyance of a fee simple absolute, and that the instrument need not of necessity, comply with the formalities of a deed of real estate generally. " See also, Gallagher v. Trustees of Cherry Hill Methodist, Md. 399 A. 2d 936 (1979) at 941 (footnote #5) . Thus, the Plaintiff is not required to produce a deed to establish his ownership to the gravesite, and the written re- ceipt that he had paid for the gravesite is sufficient to estab- lish his right of ownership to the site. The evidence at the hearing indicated that Robert Pulaski paid for the lot on which his wife us buried. The evi- dence also revealed that the Estate did not pay for it or even receive a bill for it. The Plaintiff' s right to relief can not be denied. Respectfully submitted, MANCKE & LIGHTMAN LAW GIIICCS By L Lle— MANCKE a LIGHTMAN Jon B. Mancke, Esquire suit[uoo •••.•...•••.•.. Att ney for Plaintiff ...I... HARRISBURG.PA.17105 ROBERT J. PULASKI, In the Court of Common Pleas of Plaintiff Cumberland County, Pennsylvania Civil Action - Equity VS. DEBRA K. KLINGER KYZER, No. 6 Equity Term, 1978 Executrix of the Estate of Hazel A. Pulaski, Defendant DEFENDANT'S BRIEF I. INTRODUCTION This case involves the issue of who has the right to choose and install a grave marker on the grave of a decedent. The Plaintiff in his capacity as surviving husband of the decedent claims that his position of spouse gives him the sole right. The Defendant, a daughter of the decedent, in her capacity of executrix of the decedent's will and estate, claims the right as the owner of the grave site. II. REQUESTS FOR FINDINGS OF FACTS The Defendant urges the Court to find the following facts: 1. The Decedent died on or about May 28, 1976. 2. Defendant is the Executrix named in the decedent's last will and testament and has duly qualified as such before the Register of Wills of Cumberland County. 3. Defendant arranged for and conducted the purchase of the grave site in the Chestnut Hill Cemetery. III. REQUESTS FOR CONCLUSIONS OF LAW The Defendant respectfully prays your Honorable Court to conclude the legal issues as follows: LAW OFFICES SNELBAKER, 1. The decedent's estate of which Defendant is the sole McCALEB & ELICKER legal representative is the owner of the grave site at Chestnut Hill Cemetery. 2. Defendant, as the sole legal representative of the owner of the grave site, has the only legal right to choose and install a grave marker. 3. The marker installed by Defendant on the decedent's grave site is the only lawful marker to be placed thereon. 4. Plaintiff is not entitled to choose, install or maintain a marker on the decedent's grave. IV. DISCUSSION AND ARGUMENT Plaintiff appears to confuse his possible right as spouse to arrange for the burial of his dead wife with the property right of placing a marker on the grave site. Although a spouse may have the theoretical right to arrange for his spouse's burial and the selection of a site, such right does not extend to selecting a grave marker where the grave site is not owned by the spouse. Although Plaintiff may claim the ownership of the grave site, he has produced no deed therefor. He can prove no right of ownership; therefore, his claim must fail. The law of Pennsylvania has consistently held that the right to erect a monument on a grave site is a property right. Slifer v. Greenmount Cemetery Co. , 164 Pa. Superior Ct. 534 (1949) ; Simons v. Urbach Monumental Works, 107 Pitts. L.J. 62 (1957) ; Jenka v. Oakland Cemetery Co. , 89 D. & C. 431 (1954) . LAW OFFICES In this case Defendant, as Executrix, claims that she is the SNELBAKER. MCCALEB & ELICKER owner of the grave site. The credible testimony in the case clearly -2- indicates that Defendant, not Plaintiff, made the selection of the grave site, attended to the arrangements of burial and generally under- took the interment of her mother's remains. She was authorized and directed by her mother's will to pay her ''funeral expenses" and has paid all bills presented to her including the opening of the grave. From the inception of her contact with the Chestnut Hill Cemetery, Defendant assumed, exercised and maintained exclusive control over the grave site. All the evidence confirms the status ownership in Defend- ant. As the owner, she has the exclusive right to control the monu- ments placed on the grave plot. V. CONCLUSION The Plaintiff's Complaint should be dismissed on the basis of the foregoing and judgment entered on behalf of the Defendant. Respectfully, mitted, SNELER AL ELICKER Atte for Defendant LAW OFFICES SNELBAKER, MCCALEB & ELICKER -3- 1. 1' S Justice of the Peace LiFJ� L�tLGC O�I iJ[C eleventh gl,— Novernher ��IWP sixty e — 1512 (:hatham Road sven l,nwttr A7 1 Prr j'p.,ru�bi�_ 11 A Z h 1, �. t: ,IL T 11 clr 1. t' IL 0 B i. le. T r !' U 1, flw RJ tJ /74 r Iv �� .- •J�� Pte• �� PETITIONER'S EXHIBIT 71117T6 T6 WARNING, It in illegal to duplicate this copy by pholotltal or photograph. C-t. 1n•r 1„n,k1 CtIMMONWEAL'I'll OF PENNSYLVANIA the Ior thin D1.PAHTMENT OF III—W.T11 1'erlifirule, :..1111) VITAL STATISTICS N2 452332 LOCAL REGISTRAR'S CERTIFICATION OF DEATH Registered No. ................................ Full Name of Deceased ...... z.......... , ........................... .......................... .................. Firat Middle Lost f Address 14// .�.... - ......1 �7. .f'/:J.. Sr 44., .....C -C /f Number itreat City or town �Coun► If State Place of � / Dead ......Il.../. Q... ...1..�4:4.�J i,LaC�L;cc .k_J................................ /..`Qlt.lc 1.Q2; �............................. Ycnnsylvania City. Borough r Town lip C my C-j dS 0.9�� Date of Death11..QrC.sj1.,,,,;�. y„e.....7.J. �7G,.. Social Security No. :azoQ.-...x�.y...Q..S/1��2..v�.... Race ....Lsc4C..�............ Marital Status ......r//.) .J ............ Sex 2;!,4% dx/L4........Date of Birth ..C,c� tr.+ ... ,5.—....�...J�. ...�................. Occupation ... .'.............................................. Birthplace ...................................................... If Veteran, which Wau• .......... .............. . ...... ............................................. .. .. .. Veteran's Serial No. .................................................. MEDICAL CERTIFICATE Interval Between Part 1. Death was caused by: Onset and Death intlnediate Cause (a) ...... ........................,............................ ................................ Due To (b) .�tC,ylllQ�.2.Z'®ca.� .....r..../..:............. :� ,��. • DueTo (c) ........................................................................................... fart IL omit SIGNIFICANT CONDITIONS: contributing;to death but not related to the immediate cause given in fart I (a) ..... ....... ..... ............. .............................................................. . .. ._...... ......................... ... ...........I... ....... ..._ . Accident, Suicide or Homicide ...�r�p,nu Gt r�GC ..............How (lid injury occur ........................................................................ Name and 'title of Person g � Who Certified Cause of Death (M.D.. D.U., Coroner) x .GiNQ�6�J..................................... / ... (/ ........... . Address �.1......v��..�...vl. �/.�:f���C�-1 �... .....�a ....... .................................... ...................................................... Street City This is to certify that the information here given is correctly copied from an original certificate of death duly filed With nus as Local Itegistrar. The original certificate will be forwarded to State Vital Statistics, Harrisburg, 1'emisylvania for hl-rnl:ulent Wing. t NT opy �....�..c.-r:•:x.CC.:'ht..(,,....�`..O..C.�LC.�a.... Loral lt.gi,1rar of Vital `.latlstico )Ivt ct No. 0,+� . . .<' ....� ........ i .............. ..... Street A Brenn City, Borough. Townnbi,p / v (/ glfyF TN or PE ...... .... .. ... .. �., GC��'4ti.e... .. _ .............. . . .... C' ole Received by Local Iteglnlrnr ......... ................................ 19 ...>.�......... Date of lenue of This Certification PE EXH B is , i For Three Generations Martin L. Myers Boyd L. Myers Robert J.Wolf QP y ers7wwral 37 E. MAIN STREET MECHANICSBURG,PA. 17055 (717) 766-3421 Sept. 119 1976 1 Robert J. Pulaski One (1) Grave Cemetery Lot, Chestnut Hill Cemetery $110.00 (4) Cor. Markers (P) 40.00 $150.00 I Received Payment In Full Thank You i t I i f I i f PETITIONER'S EXHIBIT CONTRACT r2 d'/ ) Brachendorf Memorials Lo HENRY J. POFI PHONE AREA CODE 717 234-7909 2131 -2143 HERR STREET HARRISBURG, PA. 17103 ice ..I�.s�^..G �.. Memorial Date �.�... .�..."'..... ./.. Phone .......................................... ........... .................... foundation •e In agreement with sxv.......... . •{•` �..p..r.��...l................ ................................ LO / o /1--7 N-C' Street,/,� ....�....� C .l(. ....... ..F....................................... �. .�... .... Total CityS..ti.v. �.......... Zip Code ........................ metery ................ -A--t..f-Jy'V.1......1-� .. ..,..............................................................................:.............:............................... LOwner .......................................................................................... Section .................................................. Lot No .......................... Please check lettering carefully, if in error call us at e. Material INSCRIPTION Design AA 2- C Ic Lettering -7 -tet t�v�2 C - a ,f Size . ............ length .:...Y..�./�............. width ................. height Size ................................ length ................................ width ................................ height FinishTop .................................. Face .................................. Ends .................................. The said memorial is guaranteed by you against any defect in workmanship. The said memorial, with title thereto and right possession .thereof, shall remain your personal property until I have paid for it in full. In default of any payment thereun- 5 I license you to repossess and remove the said memorial without guilt of trespass or other wrong, and authorize and empower i, in my name and on my behalf, to apply to the management of said Cemetery or other premises for a permit for its removal (1 to take any other steps you may deem necessary or expedient and further agree to save you harmless from and under any Lry, repossession and removal; you may then retain said memorial or dispose of it at your own discretion without being an- erable to me for it or for any proceeds therefrom. I will inform you herewith of any change in my address prior to reoment of payments the final payment hereunder. There is no agreement regarding this order other than contained herein. C.l. ....?._o&'* payment; This order is not subject to cancellation after acceptance. when the memorial is ready for Purchaser ' lettering; )...................... ........... � .�...�./�.....�/.... ✓.....�. within ten days after erection of said ACCEPTED: Date ....... PETITIONER'S (� m )pnal' ' `` /-L EXHIBIT 7�� o W LAST WILL AND TESTAMENT I, HAZEL A. PULASKI, of the Borough of Mechanicsburg, County of Cumberland and Commonwealth of Pennsylvania, being of sound and dis- t posing mind,- memory and understanding, do make, publish and declare this as and for my Last Will and Testament, hereby revoking and making void all former wills and codicils by me at any time heretofore made. 'FIRST. I order and direct that all my just debts and funeral expenses be paid by my Executrix or Executor, as the case may be, here- inafter named, as soon as conveniently may be done after my decease. SECOND. In the event my husband, ROBERT J. PULASKI, shall survive me, I devise and bequeath my homestead real estate situated at 16 East Keller Street in the Borough of Mechanicsburg, Cumberland County, Penn- sylvania, together with my household goods and furnishings therein unto my husband, ROBERT J. PULASKI, for and during the term of his natural life so long as he remains unmarried and uses said real estate only as his own residence (all others to be excluded) and pays all costs of maintenance thereof including taxes, assessments, fire and other casualt insurance premiums and ordinary repairs. Upon the death of my said 'husband or at such prior time as he no longer uses said premises as his own residence or upon his remarriage or upon the use of said premises by any other person or persons other than or in addition to my said husband or at such time as he should fail or refuse to pay the costs of maintenance aforesaid, I order and direct my Executrix or Executor, as the case may be, hereinafter named, to take possession of said real estate and the household goods and furnishings and sell the same and distribute the net proceeds thereof in equal shares unto my four (4) children, namely, CYNTHIA A. TIBBENS, RONALD P. KLINGER, DEBRA K. �INGER and DENNIS E. KLINGER share and share alike. ON"OD SNE If my said husband, ROBERT J. PULASKI , should not survive Es RTiON AND JNELDAKER BR'S • PEt�t�O gCi me, I order and direct that said real estate, household goods and furnishings shall be added to and distributed as part of my residuary estate under Item Third hereinbelow. THIRD. I give, devise and bequeath all the rest, residue and remainder of my Estate, real, personal and mixed, whatsoever and where- soever situated, in equal shares unto my four (4) children, namely, CYNTHIA A. TIBBENS, RONALD P. KLINGER, DEBRA K. KLINGER and DENNIS E. KLINGER, share and share alike, absolutely and in fee simple. FOURTH. If any of my said children should predecease me, I order e and direct that the share or interest of any such deceased child under the foregoing Items Second and Third shall be distributed unto his or her lawful issue per stirpes by representation and not per capita. FIFTH. I nominate, constitute and appoint COMMONWEALTH NATIONAL BANK of Harrisburg, Pennsylvania, to be the Guardian of the any prop- erty which passes to any minor by reason of my death, said Guardian to have discretionary power and authority to use, expend and apply from time to time such amounts of income and principal as may be necessary and proper for such minor's education and maintenance. LASTLY. I nominate, constitute and appoint my daughter, namely, DEBRA K. KLINGER, to be the Executrix of this, my Last Will and Test- ament, but if for any reason she should fail *to qualify as suefi Executr' or cease so to serve, then and in that event, I nominate, constitute and appoint my brother, namely, JAMES M. BILLOW, to be the Executor hereof, each to serve without bond. IN WITNESS WHEREOF, I, HAZEL A. PULASKI, have hereunto set my hand and seal to this, my Last Will and Testament which consists of LAW OFFICES MON AND SNELBAKER { i • ' three (3) typewritten pages to each of which I have affixed m si Y gnat this /02%b day of February, A.D. , One Thousand Nine Hundred Sevent - y sj (1976) . (SEAL The preceding instrument, consisting of this and two (2) other typewritten pages, each identified by the signature of the Testatrix, was on the date thereof signed, sealed, published and declared by HAZE, A. PULASKI, the Testatrix therein named, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence• and in the presence of each other, have subscribed our names as witness hereto. s j LAW OFFICES '4ARTSON AND SNELSAKER ' O p co .- co U') o 0 oopo b Ln Q C:3 ? p0 -S p ?? :: -4 o Y r NNH a p r- OCV Y m c- lD Ca H �' N -i- V--, 0 ( -u. j - U m rl CV r' O ca E U CL +J Q_ 0 D_ N • r7 L� N lD Q O zi C� 43 -4 -0 Q1 rl p .-i Ql T- ll ll lJ U u N .O Y -4 d O O C7- C u _ • m o U - LJ - 7 bV o mu ca C4 y U a ►� - G Q O u y tO Oo awc°>¢ciC�Ci Q • m �� r ' u H rn a c o c ri U u E v v E 0 -2 03 a4 b 3 -A Ga 4- o G 11 lJ -.-1 i > > W 3 -P " em 3 0 k r c pll 11 .. C .3 C.7 Z li.. U h w o c N ' .j V U C i 1 0 N 1 Ln o Ln Ln Ln J H 1 O i' Cp +O+ � �+ d �^ O • i+ O O * d 'bp nab m O • m v O a c� O ! d � � b O • CD 00 E U � ., G.yi Vim} O . .. i n +F4 Fj �"� N O �k aj y U Fy1� C LLJ W U O rY +1 O �0 ti. i i i'' "' Cd m S C J p C �, °� O 3 ami i. 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