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HomeMy WebLinkAbout03-1065 (4) (J-; P \ James J. Kutz, Esquire Attorney ID # 21589 Paula J. McDermott, Esquire Attorney ID # 46664 Post & Schell, P.C. 240 Grandview A venue Camp Hill, PA 17011 (717) 731-1970 n,,') ""'"1 IN RE: ESTATE OF DAVID M. GROSS IN THE ORPHANS' COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 PETITIONER BRIAN JOHN GROSS' MEMORANDUM IN RESPONSE TO THIS HONORABLE COURT'S ORDER OF FEBRUARY 14.2005 TO: THEHONORABLEJUDGEEDGARBAYLEY I. PROCEDURAL POSTURE OF THE CASE On or about April 20, 2004, Elizabeth Barth, posing as the late David Gross' common law wife, filed a request for Letters of Administration to be issued to_ her as David Gross' surviving spouse. In response, Elizabeth Barth was appointed Administratrix of the David Gross Estate, although no notice of the request was ever served on Petitioner (a surviving brother) or on decedent's other two siblings. On May 11, 2004, Petitioner Brian J. Gross, one brother of the decedent and son of Ramona Gross, late Administratrix of the David Gross Estate, filed a Petition for Revocation of Letters and Removal of the Administratrix pursuant to 20 Pa. C.S..A. 993155 and 3181. An evidentiary hearing was held on November 22,2004 before Glenda Farner Strasbaugh, Register of Wills of Cumberland County, and Kirk S. Sohonage, Esquire, Solicitor for the Register of Wills. On November 30, 2004, the Register of Wills issued an Order refusing to revoke the letters of administration without opinion or findings. Brian John Gross, Petitioner herein, filed a timely appeal on December 9, 2004. By Order dated February 14, 2005, this Court requested that Petitioner Brian John Gross file a Memorandum setting forth his position 1) as to whether the case should proceed on the Petition for Removal of the Administratrix; 2) if not, whether the Court should take additional evidence on the appeal from the denial of the Register of Wills to revoke the letters granted to the Administratrix. This Memorandum of Law is submitted in response to the Court's Order. I II. FACTUAL SYNOPSIS OF THE CASE This case arises from the fraudulent misrepresentation of Respondent Elizabeth Barth that she was the common law wife of the late David Gross. The record evidence in this matter fully establishes that Elizabeth Barth, prior to the death of David Gross in August of 2003, did not hold herself out to be his common law wife. Indeed, the assertion that she was the late David Gross' common law wife was made only after the death of Mr. Gross' mother, Ramona Gross, formerly Administratrix of the Estate. Indeed, as set forth in detail below, Ms. Barth's legal assertion is wholly undermined by her own admissions at trial! The Estate consists of $156,255.26, proceeds of a personal injury action filed by David Gross as plaintiff, and docketed to Dauphin County No. 260 1-S-1999. This amount is being held in escrow by Post & Schell, P.C. (the undersigned), pending a determination of the true beneficiaries of David Gross. Elizabeth Barth is an adult individual who currently resides at 165 Cold Springs Drive, Manchester, P A 17345. (Hearing Transcript, p. 9). Although Ms. Barth claims to have been . 1 Regardless of the Court's ruling on these two issues, Petitioner submits that the record established before the Register of Wills compels the conclusion that Elizabeth Barth clearly was not a common law wife under Pennsylvania law and thus, her appointment was fraudulent. 2 "married" to him, the late David Gross published an announcement of his engagement to Elizabeth Barth in 2000 or 2001 and Ms. Barth confirmed with the newspaper the engagement. (Hearing Transcript, p. 10). Ms. Barth testified that she and David Gross had been engaged forever. (Hearing Transcript, pp. 11-12; Petitioner's Exhibit 1). Ms. Barth also testified that she participated in the preparation of the late David Gross' obituary (Hearing Transcript, p. 12), yet that obituary lists Ms. Barth as David Gross' fiance, and was based upon information given by Ms. Barth to the funeral director. (Hearing Transcript, p. 13; Petitioner's Exhibit 2). Ms. Barth is listed as the "informant" on David Gross' death certificate, yet that document indicates that the late David Gross was divorced. (Hearing Transcript, p. 15; Petitioner's Exhibit 3). Ms. Barth conceded at the hearing that the information on the death certificate is correct. (Hearing Transcript, p. 16). Ms. Barth did not participate as a party in the personal injury action filed by her supposed husband in 1999, captioned, David Gross v. Archibald Builders, Court of Common Pleas, Dauphin County, No. 2601-8-1999. (Hearing Transcript, p. 17). In other words, she did not make any attempt to make a recovery based upon a loss of consortium claim which would have been supportable if she were David Gross' wife. (Hearing Transcript, p. 17). Ms. Barth met the late David Gross on September 8, 1995. However, neither Ms. Barth nor the late David Gross ever told David Gross' family that they were married. (Hearing Transcript, p. 16). She acknowledged that on the date she and David met, no promises of marriage were exchanged between the parties. (Hearing Transcript, p. 19). Ms. Barth and David Gross moved in together in February of 1996. In referring to February 1996, Ms. Barth testified "we were going to be married." (Hearing Transcript, p. 19). Ms. Barth was unable to identify a 3 date in February of 1996 when she and David Gross exchanged promises or agreed they were married. (Hearing Transcript, pp. 19-20).2 Ms. Barth and Mr. Gross never had a ceremony in front of a Justice of the Peace, a Judge, Rabbi or Priest. (Hearing Transcript, p. 20). Ms. Barth never described David Gross to third parties as her husband, nor did David Gross ever describe her to anyone as his wife. (Testimony of Elizabeth Barth at Hearing; Trial Transcript, pp. 20-21). Indeed, she acknowledged that she and David Gross did not describe themselves to other people as husband and wife. (Hearing Transcript, p. 21). Ms. Barth testified that she and David Gross wanted to have a church wedding. (Hearing Transcript, p. 21). She also testified that the parties talked numerous times about getting married at a Justice of the Peace, but they did not do it. (Hearing Transcript, p. 22). Ms. Barth testified that David Gross referred to her as his "angel." He would say, "there is my angel, but someday I'm going to make it legal. . . you are looking for me to use the words husband and wife and we didn't." (Hearing Transcript, p. 23). In April of 2002, Ms. Barth and Mr. Gross signed an Affidavit of Common Law Marriage, which indicated that they had lived together continuously as husband and wife since March 1, 1996. (Petitioner's Trial Exhibit 4). Ms. Barth admitted that the reason for executing the Affidavit of Common Law Marriage was to secure health care for David Gross. (Hearing Transcript, pp. 24-25). More specifically, she conceded that the Affidavit was filed "because of the financial situation he [David Gross] was in." Id. Further on in that hearing, under . 2 Curiously, although Ms. Barth never testified that she and David exchanged "vows", her lawyer proffered Ms. Barth's good friend and Ms. Barth's mother who conclusorily testified that Ms. Barth told them they had exchanged "personal vows". (Hearing Transcript, pp. 79,97). Such vague testimony, without any specificity or precise timeframe, is hardly competent evidence to overcome the strong presumptions of law which exist in this case. More telling, however, is that Ms. Barth herself never testified that "vows" (whatever they may be) were exchanged. 4 questioning from her own lawyer, Ms. Barth stated that "He [David] insisted on it (meaning insisted on signing the Affidavit)...[b]ecause it was one other way to help us monetarily just get through. I mean we were drowning in medical debt." (Hearing Transcript, p. 43). So much for the Affidavit having value to Ms. Barth's contention. Ms. Barth and Mr. Gross filed tax returns as single people. (Hearing Transcript, p. 25). Ms. Barth did not challenge the appointment of Ramona Gross, the late David Gross' mother, as Administratrix of the Estate. (Hearing Transcript, p. 26). After the death of David Gross, Ms. Barth told one Father Wallace E. Sawdy that she was "David's fiance", not wife!. (Hearing Transcript, p. 26). Once while at St. Patrick's Cathedral in New York City, David Gross asked Ms. Barth to marry him in either December of 1995 or January 1996. Ms. Barth acknowledged that the parties were talking about marriage in the future. (Hearing Transcript, p. 27). During the days of Mr. Gross' last illness, Ms. Barth never identified herself to any staff or doctors as Mr. Gross' wife. (Hearing Transcript, p. 27). The late David Gross testified at a deposition on May 12, 2000, in the course of the litigation for his injuries suffered at work. In that deposition, he provided sworn testimony that he was divorced and that that was his first and only marriage. (Hearin~ Transcript, p. 28). A Christmas card introduced by Ms. Barth at the Hearing in this matter dated Christmas 2001 from the late David Gross to Ms. Barth read, "Dear Angel, Even though you technically aren't my wife yet, try to convince my heart we are not married." (Hearing Transcript, p. 49; Respondent's Exhibit 6). Ms. Barth acknowledged that Ramona Gross, decedent's mother, regarded her as David's girlfriend, and Ramona so testified at her deposition concerning David Gross' personal injury case on November 12, 2003. (Hearing Transcript, p. 52). Petitioner Brian John Gross testified that the family regarded Elizabeth Barth as his brother's girlfriend, not his wife. 5 (Hearing Transcript, pp. 54-55). Mr. Gross testified that neither Ms. Barth nor David ever described Ms. Barth to him as David's wife. (Hearing Transcript, p. 55). Respondent presented the testimony of Janelle Augsberger. Ms. Augsberger was aware that Elizabeth Barth and David Gross were planning a marriage ceremony. (Hearing Transcript, p. 79). Ms. Augsberger was unable to specify when she believed David Gross and Elizabeth Barth had exchanged vows, but guessed that it was somewhere in the year 2000. (Hearing Transcript, p. 79-80). Ms. Augsberger was introduced to David Gross somewhere in 1995-96, and was not introduced to him as Elizabeth Barth's husband. (Hearing Transcript, p. 82). Elizabeth Barth and David Gross never told Ms. Augsberger to introduce them as husband and wife. (Hearing Transcript, p. 83). William Dallon's testimony was also presented by Respondent. Mr. Dallon testified that he was never told by either Elizabeth Barth or David Gross that they were married, and it was an assumption on his part. (Hearing Transcript, p. 92). In fact, they were treated the same way as another unmarried couple was treated in a club where Mr. Dallon, Ms. Barth and Mr. Gross were all members. (Hearing Transcript, p. 94). Respondent also presented the testimony of her mother, Suzanne Fern Barth who testified that she had advised Beth and David to go ahead and get married after his accident, but they had not done so. (Hearing Transcript, p. 97). She testified that David Gross had never told her that they had exchanged vows. (Hearing Transcript, p. 97). Suzanne Barth was unable to say when it was that she was told by her daughter that Elizabeth Barth and David Gross had exchanged vows and she gave no specificity whatsoever as to what those vows were. (Hearing Transcript, p. 99). She also testified that she referred to David Gross as her son-in-law because they were living 6 together. (Hearing Transcript, p. 99). Ms. Barth was unable to say that she had ever heard Beth describe David as her husband. (Hearing Transcript, p. 100). III. QUESTIONS PRESENTED A. SHOULD THIS COURT TAKE ADDITIONAL EVIDENCE ON APPEAL FROM THE DENIAL OF THE REGISTER OF WILLS TO REVOKE THE LETTERS GRANTED TO ADMINISTRATRIX BY ELIZABETH BARTH WHEN THE RECORD IN THIS MATTER WAS CLEAR THAT THE HONORABLE REGISTER OF ""ILLS ABUSED HER DISCRETION BY FAILING TO FIND THAT ELIZABETH BARTH HAD NOT SATISFIED HER HEAVY BURDEN OF SHOWING THAT SHE WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS; OR, IN THE ALTERNATIVE, SHOULD THE CASE PROCEED ON THE PETITION FOR THE REMOVAL OF THE ADMINISTRATRIX WHEN IT IS CLEAR THAT PURSUANT TO 20 PA. C.S.A. ~3182, THIS COURT HAS EXCLUSIVE JURISDICTION TO REMOVE A PERSONAL REPRESENTATIVE WHEN THE INTERESTS OF THE ESTATE ARE LIKELY TO BE JEOPARDIZED BY HER CONTINUANCE IN OFFICE AND SINCE ELIZABETH BARTH FRAUDULENTLY MISREPRESENTED HERSELF AS THE COMMON LAW WIFE OF THE LATE DAVID GROSS? Suggested answer: In the affirmative. IV. ARGUMENT A. THIS COURT MAY BUT NEED NOT TAKE ADDITIONAL EVIDENCE ON APPEAL FROM THE DENIAL OF THE REGISTER OF WILLS TO REVOKE THE LETTERS GRANTED TO ADMINISTRATRIX ELIZABETH BARTH SINCE THE RECORD IN THIS MATTER WAS CLEAR THAT THE HONORABLE REGISTER OF WILLS ABUSED HER DISCRETION BY FAILING TO FIND THAT ELIZABETH BARTH HAD NOT SATISFIED HER HEAVY BURDEN OF SHOWING THAT SHE WAS THE COMMON LAW WIFE OF THE LATE DAVID GROSS.- Pursuant to 20 Pa. C.S.A. 993155 and 3182, this Court is empowered both to review the Register of Will's decision for an abuse of discretion and to take additional evidence for de novo proceedings; however, here it is unnecessary to take additional evidence since it is clear that the Register of Wills abused her discretion in appointing Elizabeth Barth as Administratrix of the Estate and in refusing to revoke the improperly granted letters. The Petition in this matter was filed under 20 Pa. C.S.A. 93155 to revoke the lttters of administration granted to Elizabeth Barth, and pursuant to 93182 to remove Elizabeth Barth as 7 Administratrix. Procedurally, these two sections are complementary to one another and provide a full scope for plenary review of the Register's actions by the Orphans' Court Judge, including, if necessary, an evidentiary hearing. In the instant matter, the record is clear that Respondent Elizabeth Barth has failed to satisfy her heavy burden of proving she was the common law wife of the late David Gross. The letters issued to her should be revoked as an abuse of discretion on the part of the Register, and she should be removed as Administratrix of the Estate. The case law is clear that this Court, should it choose, may conduct a hearing and receive evidence to supplement or even supplant the record from the hearing in front of the Honorable Registrar. In re: Estate of Fritz, 798 A.2d 243 2002 Pa. Super. 129 (2002). In Fritz, the Superior Court held that pursuant to 20 Pa. C.S.A. 93155(a), the Register of Wills has a statutory duty to issue letters testamentary. On appeal from the Register's action where additional evidence is not received, judicial review is confined to a determination of whether the Register abused his or her discretion in the issuance of letters testamentary, In re: Estate of Dodge, 361 Pa. Super 188, 522 A2d 77, 78 (Pa. Super. 1987). In the Fritz case, Orphans' Court had found, without conducting an evidentiary hearing, that the Registrar had committed an abuse of discretion. The Superior Court vacated the Orphan Court's Order, remanded the matter to the Register of Wills to grant letters to the proper executor and indicated that a petition could then be filed to revoke the letters testamentary, and an appeal from the granting of the letters could be taken. Superior Court ordered the Orphans' Court to conduct a hearing and receive evidence to determine if the executor appointed had an interest antagonistic to the estate. Fritz, supra. This case is similar in procedural posture to In re: Estate of Fritz, discussed above. This Court not only has the power to review the Register of Wills' decision for an abuse of discretion, 8 it is also empowered by Pa. C.S.A. ~3182 to review the matter de novo and hold an evidentiary hearing should it wish on any contested issues. This procedure by an Orphans' Court on review of a Registrar's issuance of letters of administration was commended by the Superior Court in Re: Estate of Clink, 743 A.2d 1999 Pa. Super. 309 (1999). In that case, the Orphans' Court made findings following a hearing and review of the record. Clink, supra. The Superior Court recommended this as an appropriate procedure. The Clink Court indicated, "that the selection of the person who is initially granted letters of administration is normally within the province of the Registrar . . . where the Registrar's choice is disputed, that decision may be appealed to the Orphans' Court." Citing, 20 Pa. C.S. ~908(l). Also, citing, Brokans v. Melnick, 391 Pa. Super. 21, 569 A.2d 1373 (Pa. Super. 1999). The Superior Court held that, "Upon finding that the Register abused its discretion in choosing an administrator, the Orphans' Court may determine the proper individual to act as administrator and direct the Register to issue Letters of Administrator to that individual." (Citations omitted). Petitioner is content to have this Honorable Court reVIew the record without taking further evidence unless the Court believes it to be necessary.3 This Court is empowered by 20 PSA ~3155 and 20 PSA ~3182 to make its own review of the testimony and issue its own findings as to evidence properly admitted in front of the Register of Wills. Although Petitioner believes that such a review would be conducted by this court de novo, Petitioner submits that even under an abuse of discretion standard, the decision of the Register of Wills not to revoke the . 3 As represented previously to the Court, the supplementation would be limited to a review of Social Security records if retrievable and the corroborating evidence of two more of David Gross' siblings that Ms. Barth never held herself out as their brother's common law wife. 9 Letters of Administration improperly granted to Elizabeth Barth should be overturned, and Brian John Gross, the brother of the decedent, should be appointed administrator in her place. Many courts, including this Honorable Court, have stated that, "the burden to prove a common law marriage rests on the proponent of the marriage and such claim must be reviewed with great scrutiny." In re: Declaration as to Marriage, in the Court of Common Pleas of Cumberland County, P A, 04-1887, Civil Term, the Honorable Judge Bayley, citing Bell v. Ferraro, 849 A.2d 1233 (Pa. Super. 2004). The Superior Court has stated, "our courts have regarded common law marriage as a fruitful source of fraud and perjury and thus, the law imposes a heavy burden on one who grounds a claim upon the existence of a common law marriage." In re: Cummings Estate, 330 Pa. Super. 255, 265 n3, 479 A.2d 537, 542-43, note 3 (1984). This is especially so where the lips of one of the parties to the alleged marriage have been sealed by death. In re: Estate of Glabula, 490 Pa. 535, 540-541,417 A.2d 168, 171 (1980), precisely the situation now before this Court. The Courts will find a valid common law marriage if there is sufficient evidence to prove that it was the parties' intent to enter a marriage relationship in praesenti. In re: Cummings Estate, supra., 330 Pa. Super. 263, 479 A.2d 541. Constant co-habitatioIL of a man and woman together with a general reputation as husband and wife may raise an inference that the parties have contracted a common law marriage. In re: Estate of Garges, 474 Pa. 237, 241, 378 A.2d 307, 309 (1977). However, the facts developed at the hearing before the Honorable Register of Wills clearly indicate that Respondent Elizabeth Barth is not nor ever was married (legally, civilly or under a common law) to David Gross. The facts ofrecord clearly establish that she was nothing more than a long ternl girlfriend and/or fiance with an intent to be married to David Gross at 10 some time in the future. Elizabeth Barth was not a common law wife to David Gross and as a result, has fraudulently and illegally taken control of the Estate. Accordingly, she should be removed as the Administratrix of the Estate and the Letters of Administration issued to her should be revoked. The Registrar should be directed to swear in Petitioner, Brian John Gross, decedent's brother, as Administrator of the Estate. It is essential to note that constant co-habitation, 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. Stoddenmever, 714 A.2d 106 (Pa. 1998); Estate of Manfredi, 159 A.2d 697 (Pa. 1960). Ms. Barth, as the party with the burden to prove the existence of a common law marriage, 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 and wife be created thereby. Ms. Barth also failed to establish a reputation of marriage between her and David Gross in the community and as such, cannot satisfy any of the elements necessary. The record in this matter reveals that until David Gross and his mother, Ramona Gross were dead, Elizabeth Barth made no effort to represent herself as the common law spouse of David Gross except, of course, for the health insurance affidavit, which as discussed, supra, was executed for the purpose of helping themselves "monetarily", as they were "drowning in medical debt." In 2000 or 2001, the late Mr. Gross had an engagement announcement published wherein the couple indicated that "they plan a summer 2004 wedding in Harrisburg". (Petition, Ex. 1). Query: If already married by common law, why publish an "engagement" notice. Isn't that backwards? Ms. Barth testified at trial that she and David Gross had been engaged forever. Ms. Barth acknowledged that she was involved in the preparation of David Gross' obituary which 11 stated that she was his fiance. Ms. Barth was listed as the informant on David Gross' death certificate, a death certificate which indicated that David Gross was divorced. Ms. Barth testified that the information on the death certificate was accurate. Ms. Barth acknowledged that she never described herself to David's family as married to David Gross. Ms. Barth did not participate as a Plaintiff in the personal injury litigation filed on behalf of David Gross. Significantly, Ms. Barth was never able to pinpoint a date on which she and David exchanged words in praesenti to establish themselves as common law spouses. She variously identified the date that she considered herself married as September 7, 1995, February 1996 (no particular date was specified) and March of 1996, per the Affidavit of Common Law Marriage. Again, if married in March of 1996, why the subsequent deposition testimony of David Gross to the effect that he was divorced; why the engagement announcement; and why the obituary and death certificate entries? Her mother believed it was sometime in 2000 or 2001. Again, Ms. Barth admitted that she did not describe David Gross to people as her husband and that he did not describe her to other people as his wife. Ms. Barth and Mr. Gross, though living in a meretricious relationship, apparently wanted to have an annulment, then a marriage in the Roman Catholic Church. (Hearing Transcript, p. 21). There were apparently many conversations about just going to a Justice of the Peace to get married, but they decided not to do that. Ms. Barth testified to three occasions in which she and Mr. Gross planned to be married. (Hearing transcript, p. 22). Ms. Barth acknowledged that she and Mr. Gross never used the words husband and wife to describe their relationship. (Hearing transcript, p. 23). In fact, to her credit, she testified both at her deposition and at the hearing, that the Affidavit of Common Law Marriage filed with her employer was filed for financial (not love) reasons, so that Mr. Gross could be added to her 12 health insurance. (Hearing transcript, pp. 24-25). It is significant that other than this Affidavit dated April 8, 2002, averring that the parties were married as of March 1, 1996, the late Mr. Gross' placement of the engagement announcement in the summer of 2000 or 2001, and his deposition in his personal injury litigation which was taken in December of 2000, constitute the final words ofMr. Gross that he considered himself divorced and not married. Mr. Barth acknowledged telling Father Sawdy in 2003 that she was David Gross' fiance. She made no effort to administer the Estate of David Gross until his mother, Ramona Gross, unexpectedly died in February of 2004. She further acknowledged that she never told any staff or doctors during the days of Mr. Gross' last illness that she was his wife. (Hearing transcript, p. 27). Ms. Barth's own testimony at the hearing was far from meeting the strict standard of proof which courts accord to claims of common law marriage, particularly when one of the parties is dead. Ms. Barth introduced an unauthenticated Social Security Determination for which no underlying foundation was available. This piece of evidence surely must be rejected by this Court as lacking foundation or authenticity. It is certainly in no way probative of what, if any, investigation the Social Security Administration conducted into_ this matter or what information Ms. Barth provided to that agency. Ms. Barth also introduced, over objection, some cards allegedly sent to her and Mr. Gross over the years by various individuals. One of those cards, dated December 2001 and introduced by Ms. Barth as R6, read, "Dear Angel, even though you technically aren't my wife, yet, try to convince my heart we are not married." (R6; Hearing transcript, p. 49). Ramona Gross, when asked in her deposition taken November 12,'2003, stated Elizabeth Barth was David's girlfriend. (Hearing transcript, p. 52). 13 Ms. Barth also introduced three witnesses whose testimony was ambiguous, contradictory and self-serving. Janelle Colleen Augsberger testified that David Gross and Elizabeth Barth said that they had exchanged personal vows sometime in the year 2000. (Hearing transcript, p.79- 80). This testimony was directly refuted by the deposition testimony in 2000 of David Gross that he was divorced and had not subsequently married. Additionally, Ms. Augsberger also testified that neither David Gross nor Elizabeth Barth told her to describe them as husband and wife. (Hearing transcript, p. 83). The testimony of William Morgan Dallon can fairly be characterized as that he acknowledged that he assumed that Elizabeth Barth and David Gross were married, but they never told him that they were. (Hearing transcript, p. 92). Finally, Ms. Barth's mother, testified that Elizabeth Barth and David Gross would talk about getting married. (Hearing transcript, p. 96). She indicated that they did not get married because they wanted to wait for a church wedding. (Hearing transcript, pp. 96-97). Although she testified that Elizabeth Barth told her that they exchanged vows, she was unable to pinpoint a date or time in which this happened, or specify what those vows were! (Hearing Transcript, pp. 97-98). She also admitted that only because they were living together, she referred to David as her son-in-law. (Hearing transcript, p.99). The only element of those required to establish a common law marriage proven by Ms. Barth and other witnesses' testimony was constant co-habitation. Ms. Barth failed to prove an exchange of words in praesenti with the intention of being married, as she additionally failed to prove any reputation in the community, or that she and Mr. Gross held themselves out in the community as husband and wife, or that they had any such reputation. 14 Cases involving issues relating to common law marriage and administration of estate are strikingly similar to the instant case. In In Re: Dodge, the Register of Wills had issued letters of administration to a purported common law spouse. The Register found that common law marriage existed, and denied a Petition to Revoke the Letters of Administration. An appeal was then taken to the Orphans' Court, which determined that the Register of Wills abused her discretion when she refused to revoke the letters of administration previously granted. The Court found that the evidence was insufficient to prove a common law marriage. As in the instant case, the relationship between the decedent and the purported common law wife in the Dodge case was meretricious. As here, whatever slight evidence may have been presented by the purported common law spouse was distinctly contradicted by the evidence of record. Here, the evidence against Ms. Barth can mainly be found in documentation and her own testimony. Whether this Court elects to review this matter on an abuse of discretion standard or de novo, the Court is clearly empowered to and should determine that there was no common law marriage here, should exercise its unquestionable authority to determine the proper individual to act and direct the Registrar to issue letters of administration to that individual. Estate of Osborne, 363 Pa. Super. 200, 525 A.2d 788 (Pa. Super. 1987). Finally, it should be noted that the evidence in this matter is no more compelling than in the Ewing v. Ickes case, docketed to 04-1887 in the Court of Common Please for Cumberland County, decided by this Honorable Court on September 2, 2004. In that instance also, an affidavit of common law marriage was filed and the proponent of the marriage presented self- serving testimony from her mother that she considered the opponent of the marriage her son-in- law. Similarly to the instant case, the parties acknowledged that the Affidavit of Common Law Marriage was used solely to procure health insurance. Every other document executed or word 15 spoken by the parties over the years identified them as single persons as do all statements admitted at the Hearing before the Register of Wills and acknowledged to be authentic even by Elizabeth Barth. Although David Gross is not here to testify before this Court, other than his affixing of his signature to an Affidavit which was admittedly filled out, not for love, but for "financial" reasons, the last two acts of Mr. Gross of which there is a record, are his placement of the engagement announcement in The Patriot News in the summer of 2000 or 2001 stating that the couple planned a 200~ wedding, and his statement at his deposition in May of 2000 that he was divorced and had never been remarried. These facts are fatal to Respondent's claim. And, if that is not enough, Ms. Barth's own judicial admissions that she helped with both the obituary notice and the supply of information on the death certificate which she admitted was "accurate", yet neither document identifies her as the spouse of the deceased, and even told a priest a11er David's death that she was "David's fiance" (not wife), renders absurd and arbitrary a finding that she was the lawful wife of Mr. Gross. In Jewelcor Jewelers v. Corr, 373 Pa. Super. 536, 542 A.2d 72 (1988), our Superior Court aptly summarized the law regarding judicial admissions by a party and that party's obligation to be bound thereby: A judicial admission is an express waiver made in court or preparatory to trial by a party or his attorney, conceding for the purposes of the trial, the truth of the admission. It has the effect of a confessory pleading, in that the fact is therea11er to be taken for granted, so that the opposing party need offer no evidence to prove it and the party by whom the statement was made is not allowed to disprove it. (citing, 9 Wigmore, Evidence ~ 2488). 542 A.2d at 72. Ms. Barth is bound by her admissions. 16 v. CONCLUSION For all the foregoing reasons, it is respectfully requested that this Court sign an Order in the form attached, directing the Register of Wills to revoke the Letters of Administration granted to Elizabeth Barth, and to issue Letters of Administration to Brian John Gross, brother of the decedent, David Gross. Respectfully submitted, POST & SCHELL, P.e. J E J. KUTZ, Attorne # 215 PAULA J. MCDERMOTT, ESQUIRE Attorney ID # 46664 240 Grandview A venue Camp Hill, PA 17011 (717) 731-1970 Attorneys for Petitioner, Brian J. Gross Date: February 25,2005 17 CERTIFICATE OF SERVICE I, James J. Kutz, Esquire, do hereby certify that on the date set forth below, I did cause to be served a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in the United States mail, first-class, postage prepaid: James Nealon, Esquire Nealon & Gover 2411 North Front Street Harrisburg, PAl 711 0 The Honorable Edgar B. Bayley Cumberland County Court of Common Pleas One Courthouse Square Carlisle, P A 17013-3387 POST & SCHELL, P.C. Date: February 25,2005