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HomeMy WebLinkAbout10-01-04 (2) r NOU 22 2004 09:49 FR POST-SCHELL HBG 717 731 1985 TO 2406345 P.01/19 '" .~ ~K A1'TO'''IBn ..,. LAW This teleoopled mat8ri81 and \he infonnation contained In it is Intended only for the use of the individual Of entity to which it is addl'eS$ed and may contain Information that is p,ivileged, confidential and exempt from disClosure. If tI'le l88der of this message i$ not the intended recipient or an employee or agent responsible for deHvering the message to the intended redpient. you are hereby notified that any dissemination. d1sbibution 01' copying of this communication is stTictly prohiblted. If you have receIved this communication in error, please notify US ImInedlately by telephone and return the original message to us by m81t. Thank you. FILE NAME: IN RE: ESTATE OF DAVID M. GROSS DA1'E: NOVEMBER 22, 2004 CLIENT NO: FILE NO: No.: 2103-1065 1752 120940 FAX COVER SHEET NAME COMPANY Glenda Farner Strasbaugh, Register of Wills F~ No. 7:17-24.o~6345. PHONE NO. FROM: Paula J. McDennott 717-612-6012 TOTAL PAGES (INCL.UDINOCOVERSHEET): DESCRIPTION: Trial Brief COMMENTS: Enclosed for your review, please find the Trial Brief previously faled by PetitioDer, Brian John Gross, 00 October 1, 2004 regarding the above-captloned matter, which is scheduled for Hearing before the Register of Wills this afternoon, 11/22/04, at 1 :30 p.m. PJM In tN event of any problemS In nlcelvlns this transmission, pleaM call our office ~ (717) 131.1970. 240 GRANlWlEW AvENUIi CAMP HilL. PA '7011 717.731.1970 www.POSTSCH&LL.tOM A l"ENNsnvANIA PROfE$SIONAL CORPORATION NOV 22 2004 09:49 FR POST-SCHELL HBG 717 731 1985 TO 2406345 P.02/19 OCT 0 1 2004 t ~ .. Paula J. McDermott. Esquire Attomey 1.0. # 46664 Post & Schell, P .C. 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 E-mail: QQ.1Cdermotttmoostschell.com 90 ~ -,. (I' :; ~ cr" .' ,~. ~ - ., 1 - "" a ---- i ., 0 U1 :0 c. f':- r," - "',' .. -.'. .... IN RE: ESTATE OF DAVID M. GROSS : IN THE ORPHANS' COURT : CUMBERLAND COUNTY, PENNSYLVANIA . . : NO. 2103-1065 BRIEF OF BRIAN JOHN GROSS IN SUF!PORI OF PETITION FOR REVOCATION OF LEn"ERS AND REMOVAL OF ADMINISTRATRIX TO: THE HONORABLE JUDGE HOFFER I. FACTUAL AND F!ROCEDURAL HISTORY This dispute arises out of the August 17, 2003 death of David Gross and the proposed distribution of proceeds obtained from a personal injury settlement in a matter currenUy pending in the Court of Common Pleas of Dauphin County, Pennsylvania.1 After Mr. Gross' death, his mother, Ramona Gross, was appointed Administratrix of the David Gross Estate on December 26, 2003. Ramona Gross subsequently died on February 4, 2004, leaving no personal representative of the David Gross Estate. . 1 The personal injury action docketed to No, 2601-8-1999 was filed by David Gross as Plaintiff arising from a work-related incident during the pendency of which Mr. Gross died. The case was ultimately settled for 5450,000.00. The amount of $156,255.26 is being held in escrow by Post & Schell pending a detemrlnation of the true beneficiaries of David Gross. I'OJ 22 2004 09: 49 FR POST-SCHELL HBG 717 731 1985 TO 2406345 P.03/19 On or about AprIl 20, 2004, in a dear attempt to obtain possession of the aforementioned settlement proceeds, Elizabeth Barth. posing as Mr. Gross' common- law wife, filed a Petition to Revoke Letters of Adminlstration and requesting Letters of Administration to be issued to Elizabeth Barth as David Gross' survMng spouse. Based upon the fraudulent misrepresentations contained therein, Elizabeth Barth was appointed Administratrix of 1he David Gross Estate. On or about May 11, 2004, Brian J. Gross, the brother of the decedent, David Gross, and the son of Ramona Gross, late Administratrix of the David Gross Estate, filed the within Petition for Revocation of Letters and Removal of the Administratrix, Elizabeth Barth, inasmuch as she has fraudulently and illegally taken oontrol of the Estate and as a result was not entitled to the grant of letters pursuant to 20 Pa. C.S.A. ~~155, 3181. On or about April 27,2004, Elizabeth Barth filed her response to the Petition. A hearing has been scheduled in this matter before this Honorable Court on Monday, October 4, 2004. This Brief is respectfully submitted in support of Brian J. Gross' Petition for Revocation of Letters and Removal of Administratrix. II. ISSUE PReSENTED A. WHETHER THE CURRENT ADMINISTRATRIX, ELIZABETH BARTH, SHOULD BE REMOVED AS THE ADMINISTRATRIX OF THE DAVID GROSS ESTATE INASMUCH AS SHE WAS NOT ENTITLED TO THE GRANT OF LETIERS WHEN THE UNCONTROVERTED EVIDENCE REVEALS THAT SHE WAS NEVER THE COMMON LAW WIFE OF DAVID GROSS AND AS SUCH, FRAUDULENTLY AND "ILLEGALLY ASSUMED SUCH A ROLE? Suggested anSwer: AFFIRMA rIVE 2 1'0) 22 2004 09: 50 FR POST -SQ-ELL HBG 717 731 1985 TO 2406345 P.04/19 III. ~GltJ8fi. ELlZAB5.1:1:i BARTH SHOULD BE REMOVED AS THE ADMJNISTRATRIX OF "tHE DAVID GROSS ~~TATE INASMUCH AS. DESPITE HER REPRESENTATIONS 19 THE CO~. ~~ WM NOT ENTITLE!;! TQ THE GIWII OE ~RS WHEN THE UJj~ONTRO RTED EVIDENCE OF RECORD REVEALS THAT SHE '!1M N~R THIii QQMMON LAW WIFE OF DAVID ~BQSS. AND WM APPOINTED THE ADM~ISTRATRIX OF THE DAVID GROSS ESTATE THROUGH FRAUDULENT ANDIOR DECEPTIVE MEANS. Elizabeth Barth is not entitled to serve as the Administratrix of the David Gross Estate, inasmuch as she is not the surviving spouse of David Gross. S~, 20 Pa. C.SA S~3155r 3181. Any statement or contention that she is or was the common~aw wife of David Gross is simply inaccurate at best and a blatant misrepresentation of fact at vvorst. Indeed, Elizabeth Barth is not, nor was ever married (legally, civilly or under common law) to David Gross. The facts of record clearly establish that she was nothing more than a long term gir1friend and/or fiance with an intent to be married to David Gross at sometime in the future. Simply put, Elizabeth Barth was not as she represented to this Honorable Court, the common law wife of David Gross, and as a result thereof has fiaudulenUy and illegally taken control of the Oavid Gross Estate. Accordingly, she should be removed as the Administratrix of the Estate since she was not property entitled to the grant of letters pursuant to 20 Pa. C.5.A. ~~3155, 3181. As this Court is well aware, marriage in Pennsylvania is a civil contract which can be established through ceremony or common law. See, In re: Estate of Manfredi, 159 A.2d 697 (Pa. 1960). Moreover, because claims for the existence ofa marriage in the absence of a certified ceremonial marriage present a "fruitful source of pe~ury and fraud," Pennsylvania Courts have long viewed claims of common law marriage with hostility arid although tolerated, such claims are not encouraged. Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998). Indeed, in recent years, the Pennsylvania 3 t-KJV 22 2004 09: 50 FR POST -SCI-ELL HBG 717 731 1985 TO 2406345 P.I2l5/19 Supreme Court has reafftnned its position that claims of common law marriage are disfavored and has gone so far as to discuss (If not comptetely implement) the absolute abolition of the doctrine. Id. The Pennsylvania Commonwealth Court in PNC Bank Corooration v. WCAB (Stamos), 831 A.2d 1269 (Pa. Cmwtth. 2003) has reviewed the long history of common law marriages, addressed the overwhelming negative effects of such a principle, and held that. ". . . henceforth , this Court will recognize as valid only those Pennsylvania marrtages entered into pursuant to the marriage law pmcedures." ~C Bank Corp.. 831 A.2d 1269 at 1282. To say the least and in light of the foregoing. it is a heavy and overwhelming burden to prove the establishment of a common law marriage. Elizabeth Barth has, without question, failed to sustain this burden. In Pennsylvania, it has been consistently held that a common law marriage can only be created by the exchange of words in the present tense (verba in praesenti) spoken with a specific purpose that the legal relationship of husband and wife be created through such an exchange. Staudenmayer. 714 A.2d at 1020. The Staudenmaver court further noted that the common law marriage contract does not require any specific fonn of words; all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. M,.; See also, Estate of Gawla, 417 A.2d 168 (Pa. 1980). As noted above. words in the present tense are generally required to prove a common law marriage. The Courts have imposed an additional requirement that when applicable (i.e., no evidence of verba in praesenti or death 'of one of the parties), the party claiming a common law marriage must establish: (1) constant cohabitation; and, (2) a reputation of marriage in the community (which is not partial or divided but is broad and general). It 4 !'OJ 22 20l1l4 09: 50 FR POST -SOELL HBG 717 731 1985 TO 2406345 P.06/19 is essential to note, hoWever, that constant cohabttation even when coupled with a general reputation in the community is not marriage, but merely circumstances which could give rise to a rebuttable presumption of marriage. Staudenm8yer. 714 A.2d 106 (Pa. 1998); Estate of Manfredi, 159 A.2d 697 (Pa. 1960). In this case, Elizabeth Barth, as the party with the burden to prove the existence of a common law marriage, has failed to establish the exchange of words in the present tense spoken between her and David Gross with the specific purpose that the legal relationship of husband of wife be created thereby. Ms. Barth has also failed to establish a reputation of marriage betWeen her and David Gross in the community and 8$ such, cannot satisfy any of the elements necessary to establish a common law marriage in Pennsylvania. Specifically, although Elizabeth Barth claims to have lived with David Gross for approximately seven years, there is no evidence to suggest that the two regarded themsetves or were generally regarded as being married to one another in any sense of the term. Indeed, in her deposition testimony, Ms. Barth testified that people did not refer to her and David as husbandlwife, but rather -everyone knew us to be represented as David and Beth." (Barth depo. at p. 27). Moreover, Ms. Barth testified that neither she nor David Gross referred to one another as husband and wife, but rather introduced one another or introduced each other as "this is my David and this is my angel." (Barth depo. at p. 27). Ms. Barth further testified that although, on occasion. she may have been referred to as -Mrs. Gross," she took exception to this denomination and in fact would correct the speaker by saying, "My name is Elizabeth Barth." (Barth depo. at p. 72). She never introduced herself nor referred to herself as the wife of David Gross. 5 I'OJ 22 2004 09: 51 FR POST -5OELL HOO 717 731 1985 TO 2406345 P.07/19 Mrs. Gross or any derivation thereof. (Barth depo. at pp. 27, 73). Indeed, Ms. Barth also testified that they never referred to ~ as husband and wife nor mentioned any asserted marriage to any members of Mr. Gross' family, including Mr. Gross' mother. (Barth depo. at pp. 27, 28). The deposition t~tihlOny of Elizabeth Barth further establiShes that any discussion of marriage was always addressed as a future occurrence. Ms. Barth and David Gross made wedding plans which had to be scheduled and rescheduled on numerous occasions, always with the Intent to ultimately be married at sometime in the future. (Barth depo. at p. 31). Moreover, the deposition testimony reveals that David Gross asked Ms. Barth to many him and gave her an engagement ring for a maniage that would occur, again, some time in the future. (Barth depo. at pp. 54-55). Indeed, David Gross' obituary, based. upon information supplied by Ms. Barth, I'9ferenced Ms. Barth as his fiance. (Exhibit "B" to Petition). At the deposition of David Gross taken in his personal injury lawsuit, David Gross indicated that Elizabeth Barth was his fiance. (Barth depo. at p. 63; Exhibit -0" attached to Petition). Indeed, based on Infonnation provided by Ms. Barth, David Gross' Death Certificate notes that at the time of his death he was divorced with no survMng spouse - - not currently married as Ms. Barth would like this Honorable Court to believe.2 (Exhibit "A" attached to Petition). Clear1y, Elizabeth Barth has been unable to estabtlsh that she and Mr. Gross had a reputation within the community of being husband and wife and in fad, Ms. Barth has only been able to produce evidence to suggest that, although the two were indeed a couple, any marriage between Ms. Barth and David Gross was to take place in the . 2 It is undisputed that David Gross was previously married and divorced from his first wife in or about 1992. 6 t()V 22 2B04 09: 51 FR POST -sa-ELL Hffi 717 731 1985 TO 24eJ6345 P.l2I8/19 future. Indeed, they did not refer to one another as husband and wife; Ms. Barth did not refer to herself as Mrs. Gross; family and friends, including Mr. Gross' own mother, referred to Ms. Barth as either his girffriend or fiance; and David. Gross himself, while alive, referred to Ms. Barth as his girtfriend or fiance. For all intents and purposes, Ms. .Badh.and David. ~iliYed with one another but acted and held themselves out as two single individuals. In fact, Ms. Barth testtfted that their taxes were always fled as single persons - not married. The only shred of evidenGe in support of her position that EIizabeIh Barth is.1he common law wife of David Gross was a self-serving Affidavit of Common Law Marriage which was executed by Mr. Gross and Ms. Barth. In her deposition at Pages 35 and 36, Ms. Barth indicates 1he joint decision to file an affidavit of common law marriage with Coventry Health Care (Health America) was only to purchase supplemental health insurance for David Gross for purely financial considerations, not to establish a common law relationship with David Gross. A.s this Court is well aware, although such an Affidavit is admissible and constitutes probative evidence of the existence of a common law marriage, it is not irrebuttable evidence and as such, is not conclusive proof of the relationship. Indeed, in Bell v. Ferraro, 849 A.2d 1233, the Pennsylvania Superior COurt stated that, "we reoognize [that an affidavit of common law marriage) is admissible and probative evidence. It is not, however, irrebuttable evidence. The statute which allows the contents of a notarized documen~ to be admitted as proof of the facts stated therein, also recognizes that a litigant 'may be pennitted to contradict by other evidence any such certificate,'- .1.9. at 1235. 7 !'OJ 22 2l2l04 l2l9: 51 FR POST -5OELL HB:i 717 731 1985 TO 2406345 P.l2l9/19 As in the &gft decision, the facts presented herein clearly conbadict and outWeigh any probative value of the self-serving Affidavit of Common Law Marriage Inasmuch as Blzabeth Barth hEneIf testified that the Affidavit was intended solely to aUow David Gross to be added to her health insurance. (Barth depo. at p. 33). It is quite evident in this case that the execution and use of the Affidavit of Common Law Marriage was simply to allow Oavid Gross to receive health benefits. Ms. Barltl herself testified as much, and a basic review of the contents of the Affidavit, together with the contents of Ms. Barth's deposition testimony, reveals significant discrepancies between the two. Specifically, in her deposition testimony, Ms. Barth testified that, in her opinion, she and Mr. Gross were married as of the day they met (i.e., September 8, 1995), whereas the contents of the AffidavIt reveal that she and Mr. Gross were married when the two began to reside with one another (i.e.. March 1. 1996). She also testified that the date was February of 1996. Normally, married persons have only one anniversary. Given the purpose behind the Affidavit of Common Law MalTiage, together with the self. !OJ 22 2004 l?J9: 51 FR POST -5OEI....L HIli 717 731 1985 TO 2406345 P.10/19 It is possible that Mr. Gross and Ms. Berth cared for one another very deeply. However. simply caring for another person does not entitle Ms. Barth to the same rights. obligations and entillements of a spouse. The record In this matter Is abundantly clear 1hat Ms. Barth and Mr. Gross were not oonvnon law husband and wife. did not hold themselves out as husband and wife. did not refer to themselves as husband and wife. did not tell any friendS or famly that they were married. In fact, at all times material !:;i~(~, Ms. Barth and Mr. Gross intended to get married at some point in the future. The fact that the parties intended to be married in the future is evidenced by the fact that Ms. Barth and Mr. Gross, on several occasions. scheduled and rescheduled their wedding nuptials and refened to one another as fiance, not as husband and/or wife and produced an engagement announcement in The Patriot News indicating a wedding to take place in the summer of 2004. Mr. Gross had purchased an engagement ring and the announcement listed Bizabeth Barih as David Gross' fiance. After David Gross' death, there was a letter of condolences issued to David's mother depicting a phone call made by Elizabeth Barth. who introduced herself to Father Sawdy as David's fiance after David's death. Surely, two married individuals do not call one another a fiance and schedule a wedding ceremony if in fact they are already married. Any statements to contentions to the contrary constitute an outright misrepresentation of fact to this Honorable Court. For these reasons, as well as for the reasons set forth above. Petitioner, Brian John Gross. requests that Elizabeth Barth be removed as the Administratrix of the estate of David Gross, and that he be granted Letters of Administration for the Estate of David Gross. 9 !'OJ 22 2004 09: 52 FR POST -SCI-ELL HBG 717 731 1985 TO 2406345 P.11/19 IV. CONCLJJfION For the foregoing reasons, Petitioner, Brian J. Gross, respectfully requests this Honorable Court to grant his Petition, remove Elizabeth M. Barth as the Administratrix of the Estate of David Gross and appoint Brian J. Gross as the Administrator of the same. Respectfully submitted, POST & SCHELl, P.C. ~..Da.~. tt--c ~~ :it-. PAULA . MCDERMOTT, ESQUIRE Attomey 1.0. # 46664 240 Grandview Avenue Camp Hill, PA 17011 (717) 612-6012 Date: September 30. 2004 Attorneys for Petitioner, Brian J. Gross 10 tCJ 22 2004 09: 52 FR POST -sa-ELL HIE . Exhibit A 717 731 1985 TO 2406345 P.12/19