Loading...
HomeMy WebLinkAbout04-19-06 , , J. A36017/05 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.65.37 IN RE: ESTATE OF DAVID M. GROSS, IN THE SUPERIOR COURT OF PENNSYLVANIA APPEAL OF: ELIZABETH BARTH, Appellant No. 818 MDA 2005 Appeal from the Order entered on April 13, 2005 in the Court of Common Pleas of Cumberland County, Orphans' Court Division, No. 21-03-1065 BEFORE: DEL SOLE, P.J., MUSMANNO and KELLY, JJ. MEMORANDUM: FILED: March 8, 2006 Elizabeth Barth ("Barth") appeals from the Order revoking letters of administration previously granted to her with regard to the Estate of David M. Gross. We affirm. The procedural history of the instant case is as follows: (') David M. Gross ["David"], born April 27, 1957, d~ intestate on August 17, 2003. On December 26, 20~~p his mother, Ramona Gross, was granted letters :g~S3 administration of his estate. Ramona Gross died d:61~~ February 4, 2004. On April 12, 2004, [Barth:B~"Y; representing by affidavit that she was the common la~::S wife of [David], filed a petition to revoke the letters at: administration that had been issued to Ramona Gross and petitioned that letters of administration be issued to her. On April 20, 2004, the Register of Wills granted letters of administration to [Barth]. On May 11, 2004, Brian J. Gross ["Brian"], a brother of [David], filed a petition for revocation of the letters, claiming that [Barth] was not the wife of [David] and was not entitled to be issued letters of administration of his estate. A hearing was conducted before the Register of Wills on November 22, ,...;> c::::> = c:T'" poo -0 :::0 \.0 -0 :x .r:- .. Cj\ PI. Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District March 8, 2006 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superior.court.state.pa.us Certificate of Remittal/Remand of Record TO: Ms. Mary C. Lewis Register of Wills & Orphans' Court Clerk RE: In Re: Est. of D. Gross NO.818 MDA 2005 Trial Court/Agency Dkt. Number: 21-03-1065 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Parts Filed Date June 27, 2005 APR 1 8 20(J6 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. ~ ""'tc~ Description 2 Date of Remand of Record: Signature Date Printed Name /alv ('") S;o c.". ::0 ';Q-uo :I) ;;:; \ . '-=-rn 4::0 (f) 7" no ()Q-n .::.:JC . ::0 T)-i ::...... I-..) = = cs..... )> -0 :::u \.0 -0 :Jt .r:- :c;; --1". - ::=s rr I 0"\ Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary Superior Court of Pennsylvania Middle District March 8, 2006 Certificate of Remittal/Remand of Record TO: Ms. Mary C. Lewis Register of Wills & Orphans' Court Clerk RE: In Re: Est. of D. Gross NO.818 MDA 2005 Trial Court/Agency Dkt. Number: 21-03-1065 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA ]710] 7]7-772-]294 www.superior.court.state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Parts Filed Date June 27, 2005 APR 1 820a6 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. cJ-: ",,~~ Date of Remand of Record: ~6~ '-141'1 p y Date arnw S-/'a~ Printed Name /alv Description 2 ('") So ~-:o 8........ (n v,....." :::-"j SE f'-! Cpzm >::: u3 5E 'J()O C)O--r-J (::JC , :.0 =0-1 )> ~ = <:::> c:r- :boo -0 ::::0 .=0 p;=;: E~ (7') C) ~-:~ r:S ::--~l n-, : 0 ':::J C, (.~J . ;-j -r-, ~X: ~~ (/) (::) -'I \.0 -0 :J:: .r- .. 0'"1 ~ J. A36017/05 2004. On November 30, 2004, the Register issued an order denying the petition. On December 9, 2004, [Brian] filed an appeal from that order. Trial Court Opinion, 4/13/05, at 1. Thereafter, the trial court did not take additional evidence, but requested briefs and heard oral argument. On April 13, 2005, the trial court reversed the Order of the Register of Wills denying Brian's Petition to revoke the letters of administration issued to Barth. The trial court directed the Register of Wills to revoke Barth's letters of administration, and, "on petition," to issue letters of administration to Brian. Barth filed this timely appeal from the trial court's Order of April 13, 2005. Barth raises the following issue on appeal: whether the trial court erred in reversing the Register of Wills's decision and revoking the letters of administration previously granted to Barth? See Brief of Appellant at 4. We must first determine if this appeal is properly before us. Rule 342 of the Pennsylvania Rules of Appellate Procedure provides as follows: An order of the Orphans' Court Division making a distribution, or determining an interest in realty or personalty or the status of individuals or entities, shall be immediately appealable: (1) upon a determination of finality by the Orphans' Court Division, or (2) as otherwise provided by Chapter 3 of these rules. Note: This rule was amended in 2001 to allow appeals from orders determining an interest in realty, personalty or status of individuals or entities, upon certification of the Orphans' Court judge. Prior to the 2001 amendment, this rule only permitted appeals from an order of distribution not final under Rule 341(b). The amendment - 2 - J. A36017/05 to the rule was not intended to preclude immediate appeals in Orphans' Court matters as heretofore permitted under Rule 311 (Interlocutory Appeals as of Right) and Rule 313 (Collateral Orders). However, Rule 342 may have been ambiguous in that regard because in Estate of Sorber, 2002 Pa.Super. 226, 803 A.2d 767 (2002), a panel of the Superior Court interpreted the 2001 amendment of Rule 342 to preclude immediate appeals from collateral orders unless determined to be final by the Orphans' Court judge. The holding in Estate of Sorber, to wit, that Rule 342 precludes collateral order appeals under Rule 313, is now superseded by the 2005 amendment to Rule 342. The 2005 amendment provides that Rule 342 is not the exclusive means for appealing orders: (a) determining an interest in realty or personalty or the status of individuals or entities, or (b) making a distribution. An aggrieved party may appeal such orders under any other Rule in Chapter 3 of the Rules of Appellate Procedure to the extent that the order meets the requirements for appealability under any such rule. Pa.R.A.P. 342 (emphasis added). The Order from which this appeal is taken is one by the Orphans' Court determining the "status of individuals." Thus, the requirements of Rule 342 must be met if the Order is to be "immediately appealable." Our review of the record reveals that the Orphans Court did not make a "determination of finality" as required by Rule 342(1). Thus, we must determine if the Order is appealable "as otherwise provided by Chapter 3" of the Rules of Appellate Procedure. See Pa.R.A.P. 342(2). Chapter 3 of the Rules of Appellate Procedure allows for appeals from final orders under Rule 341 (final orders generally) and Rule 342, supra, and - 3 - J. A36017/05 for interlocutory appeals as of right (Rule 311), interlocutory appeals by permission (Rule 312), and collateral orders (Rule 313). The Order from which this appeal was taken is not one of the types of interlocutory orders appealable as of right as set forth in Rule 311. Nor is the Order on appeal herein appealable by permission pursuant to Rule 312, as Barth has not followed the procedure set forth for such an appeal. Under Rule 341, a final order is defined as follows: (b) Definition of final order. A final order is any order that: (1) disposes of all claims and of all parties; or (2) any order that is expressly defined as a final order by statute; or (3) any order entered as a final order pursuant to subdivision (c) of this rule. (e) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order. . . . Pa.R.A.P. 341. In Estate of Schmitt, 846 A.2d 127 (Pa. Super. 2004), a panel of this Court determined that an order admitting a will to probate was not a final - 4 - J. A36017/05 order pursuant to Rule 341. The Court held that, in a case involving a decedent's estate, that "the confirmation of the final account of the personal representative represents the final order." Id. at 129. The Court further determined that the order was not appealable under Rule 342 because "the Orphans' Court was not requested to, and did not make, a determination of finality." Id. at 130. The Court therefore quashed the appeal. Id. Since the Order under appeal herein is not a "confirmation of the final account of the personal representative," it is not a final, appealable order under Rule 341. In addition, the Orphans' Court herein was not requested to, and did not make, a determination of finality. Therefore, the present Order is not appealable under Rule 342. Under Rule 313 of the Pennsylvania Rules of Appellate Procedure, "[a]n appeal may be taken as of right from a collateral order of an administrative agency or lower court." Pa.R.A.P. 313(a). A collateral order is defined as follows: A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa.R.A.P. 313(b). In Estate of Georgiana, 458 A.2d 989 (pa. Super. 1983), a panel of this Court considered the appealability of an order denying a petition for the removal of an executor of an estate under the collateral order doctrine. In - 5 - J. A36017/05 applying that doctrine, the Court held that the order under appeal was "a separate and collateral order in that the executor, while performing an important administrative and fiduciary function, can be replaced by another party," and that "[t]he administration of the estate, while delayed, would continue," Id. at 991. Similarly, we conclude that an order such as the one in the instant case, revoking letters of administration to the administratrix of the estate, is a separate and collateral order as the administratrix can be replaced by another party, and the administration of the estate, "while delayed, would continue," See id. The Court in Georgiana also found that the right involved was too important to be denied review, the second part of the collateral order test. Id. at 991. The Court explained that "[w]hen the assets of an estate are subject to possible harm or diminution because of acts or omissions of an executor[,] the courts are the appropriate forum to decide what action is necessary to remedy that harm." Id. The Court also stated that questions of removal of an executor "involve serious issues bearing upon the property in question, the reputation of the executor, and also the interest of the state in assuring orderly administration and in properly ascertaining and collecting revenues." Id. - 6 - J. A36017jOS Similarly, in the instant case, we conclude that the trial court's Order revoking Barth's letters of administration is too important to be denied review, for the same reasons as were expressed by the Court in Georgiana. The Court in Georgiana also found that the right involved (of a beneficiary to a competent and trustworthy executor) was one which would be "irreparably lost if review is deferred." Id. at 991. The Court determined that "deferral of review may mean that the assets of the estate will be dissipated or destroyed in the interim." Id. The Court concluded that the order denying the petition for removal of the executor was proper for appellate review. Id. We conclude that the Order in the instant case is similar to the order found appealable in Georgiana. Accordingly, based on that rationale, we conclude that the Order herein is a collateral order subject to immediate appeal.! We now consider the merits of Barth's claim on appeal. Barth alleges that the trial court erred in revoking the letters of administration previously granted to her. Our standard of review is as follows. "On appeal from the Register[] [of Wills's] action, where additional evidence is not received, judicial review 1 We also note that in Estate of Dodge, 522 A.2d 77 (Pa. Super. 1987), a case with facts virtually identical to those in the instant case, the order from which the appeal was taken, which revoked the appointment as administratrix of the decedent's alleged common law wife, was considered on appeal without discussion of the appealability of that order. Id. at 78. - 7 - J. A36017/05 is confined to a determination of whether the Register abused his or her discretion in the issuance of letters to an administrator." Dodge, 522 A.2d at 78. The Register of Wills conducted a hearing on November 22, 2004, in connection with Brian's Petition alleging that Barth was not entitled to letters of administration because she was not the common law wife of the decedent.2 "A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that." Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (Pa. 1998) (citation omitted). "The burden to prove the marriage is on the party alleging a marriage, and we have described this as a 'heavy' burden where there is an allegation of a common law marriage." Id. "When an attempt is made to establish a marriage without the usual formalities, the claim must be reviewed with 'great scrutiny. '" Id. 2 We note that common law marriages, contracted after January 1, 2005, have been declared invalid by statute. See 23 Pa.C.S.A. 9 1103. The Commonwealth Court of Pennsylvania had previously decided that it would not recognize common law marriages. PNC Bank Corp. v. Workers' Compensation Appeal Bd., 831 A.2d 1269, 1282 (Pa. Commw. 2003). In Stackhouse v. Stackhouse, 862 A.2d 102 (Pa. Super. 2004), a panel of this Court held that the decision in PNC Bank could be applied prospectively only. Id. at 108. In this case, Barth alleged that the common law marriage existed from 1996. Thus, the statute and the PNC Bank case invalidating common law marriages do not apply. - 8 - J. A36017/05 Generally, words in the present tense are required to prove common law marriage. Because common law marriage cases arose most frequently because of claims for a putative surviving spouse's share of an estate. . ., we developed a rebuttable presumption in favor of a common law marriage where there is an absence of testimony regarding the exchange of verba in praesenti. When applicable, the party claiming a common law marriage who proves: (1) constant cohabitation; and, (2) a reputation of marriage "which is not partial or divided but is broad and general," raises the rebuttable presumption of marriage. 5taudenmayer, 714 A.2d at 1020-21 (citations omitted). The mere fact that they [the alleged contracting parties] were known to a few people as man and wife is not sufficient evidence to establish marriage. Proof by reputation for such purposes must be general and not confined to a few persons in the immediate neighborhood, as the relationship may be established merely for the purpose of deceiving others. . . . In re Estate of Rees, 480 A.2d 327, 329 (Pa. Super. 1984) (citations omitted). Cohabitation and reputation are not a marriage; they are but circumstances from which a marriage may be presumed, and such presumption may always be rebutted and will wholly disappear in the face of proof that no marriage has occurred. Commonwealth ex rei. McDermott v. McDermott, 345 A.2d 914, 915 (Pa. Super. 1975) (citations omitted). At the hearing before the Register of Wills on November 22, 2004, Barth testified that she was aware of a newspaper article announcing that she and David were engaged. N.T., 11/22/04, at 9. Barth further recalled having testified in a deposition on August 13, 2004, that she was engaged to - 9 - J. A36017/05 David. Id. Barth was involved in the preparation of David's obituary, which indicated that she was David's fiancee. Id. at 10-11. In addition, Barth was the "informant" with regard to David's death certificate, which indicated that David was divorced. Id. at 13. Barth explained that David had been divorced a decade earlier. Id. Barth testified that she never told David's family that she and David were married. Id. at 14. She was aware of a personal injury action in which David was the plaintiff, but she was not a plaintiff in that action. Id. at 15. Barth and David never had a marriage ceremony. Id. Barth testified that she and David did not describe each other to other persons as husband and wife. Id. at 19. Barth testified that she and David did not use the words "husband and wife" to describe their relationship. Id. at 21. During Barth's testimony, a document was admitted entitled "Affidavit of Common Law Marriage," signed by Barth and David on April 8, 2002. The Affidavit stated that Barth and David "lived together continuously as husband and wife from 3/1/96 to the present time," and that "[d]uring this period we have professed to be husband and wife and we have held ourselves out to the community as being married." N.T., 11/22/04, at 22. Barth and David completed this form in order to place David on Barth's health care insurance. Id. - 10 - J. A36017/05 Barth testified that, while she and David were living together, they filed tax returns separately as single persons. Id. at 23. Barth did not identify herself as David's wife to David's doctors or hospital workers. Id. at 25. Barth was aware that David had testified in a deposition in 2000 that he was divorced, and that the marriage was his first and only marriage. Id. at 26. Barth testified that she and David viewed themselves as married, and that they were married to each other in their hearts. Id. at 31. Barth testified that she received a card from David's mother, Ramona, stating "To a special daughter," and signed, "Love mother and dad." Id. at 35. Barth received flowers from David's parents when she was in the hospital, with a card saying "Love Mother and Dad Gross." Id. at 36. Barth received cards from David's niece stating "Birthday wishes for my aunt," and "Uncle David and Aunt Beth from Danielle for Valentine's Day." Id. David sent Barth a card which was titled "For my wife." Id. The card stated, "Dear Angel, even though you technically aren't my wife yet, try to convince my heart we are not married." Id. at 47. Barth's father sent a card to David, stating "For a special son-in-law." Id. at 45. After David's death, Barth applied for and received benefits from the Social Security Administration as the surviving spouse. Id. at 41-43. Barth testified that she is the beneficiary on the workers' compensation portion of David's personal injury claim, and she receives $500 per month as beneficiary. Id. at 44. - 11 - J. A36017j05 Brian, David's brother, testified that Barth was never married to David. Id. at 52. Brian stated that Barth was David's girlfriend when David was alive. Id. Brian indicated that Barth never described herself as David's wife. Id. at 53. Brian told the Social Security Administration that Barth and David were not married. Id. at 63. A friend of Barth's, Janelle Augsburger ("Augsburger"), testified that she always introduced David and Barth as husband and wife. Id. at 76. However, she was aware that David and Barth were planning a wedding ceremony. Id. at 77. David and Barth told Augsburger that they had exchanged their own personal vows with each other. Id. at 77-78. Augsburger indicated that David's mother called Barth "daughter" often. Id. at 82. William Dallam ("Dallam"), who knew David from a social club of which they were both members, testified that he understood David and Barth to be a married couple. Id. at 86. Dallam sent out bills to David and Barth as married persons, similar to the way the club had sent bills to another couple that lived together but were not married. Id. Dallam stated that David and Barth interacted with each other the way a married couple does. Id. at 87. David and Barth never told Dallam they were married; Dallam just assumed it. Id. at 90. Barth's mother, Suzanne Barth ("Suzanne"), testified that David and Barth talked about getting married and having a big wedding. Id. at 94. - 12 - J. A36017j05 Suzanne considered David her son-in-law. Id. Suzanne indicated that the only reason that David and Barth did not get married was David's accident and his subsequent surgeries. Id. at 94-95. Suzanne testified that Barth had told her that Barth and David had exchanged vows, and Suzanne considered them husband and wife. Id. at 95. In considering the testimony and evidence submitted to the Register of Wills, we note that two of the witnesses testified that they were told that David and Barth exchanged marriage vows. However, Barth herself did not testify that she and David exchanged vows. In fact, Barth stated that she and David never had a marriage ceremony. Barth presented the Affidavit of Common Law Marriage signed by her and David, which stated that she and David had held themselves out to the community as being married. However, Barth testified that she never told David's family that they were married, and that she and David did not describe themselves to others as husband and wife. In addition, Barth testified that she stated in a deposition that she and David were engaged, and that she helped to prepare David's obituary, which stated that she was David's fiancee. Barth presented evidence of cards and flowers sent from her father, from David's parents, and from David's niece indicating that Barth and David were husband and wife. Barth also presented evidence from Augsburger, a friend of Barth's, that she introduced David and Barth as husband and wife; from Barth's mother that she considered David and Barth to be husband and - 13 - J. A36017/0S wife; and from William Dallam that the social club treated David and Barth as a married couple. However, in light of Barth's own testimony that the couple did not describe themselves to others as husband and wife, we cannot conclude that the evidence was sufficient to prove a "broad and general reputation" of marriage between Barth and David. Thus, we conclude that the Register of Wills abused her discretion in determining that Barth was the common law wife of David, and in granting letters of administration to Barth on that basis. Accordingly, the trial court did not err in reversing the Register of Wills' decision and revoking the letters of administration granted to Barth. Order affirmed. Judgment Entered: , ~?f/c~ e uty Prothonotary March 8, 2006 Date: - 14 -