YLS Case Law Updates - Civil Procedure,

Juvenile Law, Wills and Estates

Facilitator/Moderator: Michael Davey, Esq.

Judicial Representative: Hon. John Capuzzi

Panelists:

Matthew Bilker, Esq. Heather Hayes, Esq.

Christopher Brown, Esq.

1 Substantive Credit CLE/CJE

6/1/2017

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2017 Delaware County Bench-Bar Conference

By: Matthew J. Bilker, Esq.

Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander, P.C.

300 W. Front Street, Media, PA 19063(610) 565-3700

mbilker@eckellsparks.com www.eckellsparks.com

Service of Process

Century Surety Co. v. Essington Auto Ctr., LLC, 140 A.3d 46 (Pa. Super. 2016)

•Party fails engage in good faith service of process when it knows that an adverse party is represented by counsel in a separate proceeding, but fails to contact the adverse party’s attorney to inquire about how to effectuate service.

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Roytman v. Cesarone, 3345 EDA 2015 (Pa. Super. 2/14/2017) (mem.)

• Where plaintiff fails to make a good-faith effort at timely service after S.O.L. expires and defendant has no actual notice of the litigation, prejudice need not be established in order to dismiss case.

• With no actual notice, period of 1 year delay following commencement of action with no effort at service at all, dismissal warranted.

Johnson v. Austin, 1122 EDA 2016 (Pa. Super. 4/19/2017) (mem.)

• Where defendant had no actual notice of lawsuit at time SOL expired, a delay of 5 months by plaintiff ’s attorney after commencing the action with no reinstatement of complaint warranted dismissal.

• Plaintiff ’s attorney hired a private investigator to locate defendant after the first failed service attempt 1 week before SOL expired; Superior Court noted that attorney never informed investigator that SOL was coming up, however.

• Superior Court also took attorney to task for delaying another month before filing a motion for alternative service once defendant’s address was confirmed.

Wilkinson v. G. Bass Co., 1910 MDA 2015 (Pa. Super. 9/7/2016)

•Where plaintiff files writ within SOL, but Sheriff fails to serve, and plaintiff then waits until 13 months after the SOL to reissue writ and effectuate service, no good faith effort.

•Statute of limitations defense is an affirmative defense properly raised in Answer and New Matter; not preliminary objections.

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PRELIMINARY OBJECTIONS

New Wilmington Borough v. Wilmington Twp. Sewer Auth., et al., No.: 11727 of 2010 (C.P. Lawrence, 12/6/2016)

•Where defendant fails to file preliminary objections in response to original complaint claiming improper addition of party under Pa.R.C.P. 1033, defendant waives right to file such objections to any amended complaint.

Joinder of Third-Party Defendants

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Lemoncelli, et al. v. Newell Rubbermaid, Inc., No.: 11 CV 2565 (C.P. Lackawanna, 1/24/2017)

• Under current version of Pa.R.C.P. 2253, late joinder may be denied on basis of prejudice to a party or failure of joining defendant to show reasonable justification for the delay in seeking joinder.

• But, current rule says that only plaintiff may object on the basis of absence of reasonable justification for delay.

• If plaintiff consents to joinder, the party to be joined cannot argue lack of reasonable justification for delay (but it can still argue prejudice).

“Relation Back”

Pleadings

Pa.R.C.P. 1033

•On 4/1/2017, amendment to Pa.C.R.P. 1033 took effect, adding subsection “(b)” that provides for “relation back” amendments.

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Pleading“Recklessness”

Belfert v. Talking Cousins, Inc., et al., No.: 2016-07684 (C.P. Montgomery, 9/22/2016)

•Allegation of “recklessness” refers to defendant’s state of mind that may be pled generally.

•Allegation of “recklessness” does not—in and of itself—denote or suggest a claim for punitive damages.

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General Denials

Stevens & Lee, P.C. v. Cresswell, 1832 EDA 2015 (Pa. Super. 11/1/2016) (mem.)

•Answering factual allegations in complaint with “denied and strict proof demanded,” is a general denial that is deemed an admission under Pa.R.C.P. 1029(b).

Reply to New Matter

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Taylor v. Harris, 1979 EDA 2015 (Pa. Super. 8/25/2016) (mem.)

• Defendant not entitled to compulsory non-suit at trial where plaintiff had failed to file reply to Defendant’s new matter, because all new matter averments were legal conclusions with no factual averments in support.

• Averment that the responsibility for the plaintiff ’s injuries was caused by some other individual over whom the answering defendant had no control—with no other specific facts—is a legal conclusion.

Opening Default

Judgments & Non Pros

Horwath v. DiGrazio, et al., 142 A.3d 877 (Pa. Super. 2016)

• When petition to open judgment of non pros is filed within 10 days after entry of the judgment, then Rule 237.3(b) presupposes that the petition is “timely filed” and dispenses with the “reasonable excuse” requirement.

• A petition to open filed after the Rule 237.3(b) 10-day period is not untimely per se; rather, petition is governed by multi-factor analysis under Rule 3051(b) and is not presumed to be timely.

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The Dead DEFENDANT

Grimm v. Grimm, et al., 149 A.3d 77 (Pa. Super. 2016)

• When a defendant dies during litigation and no personal representative is substituted in his/her place, the trial court loses subject matter jurisdiction over all claims against the decedent.

• When a personal representative is substituted, trial court regains personal jurisdiction.

Removal & Remand

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Coffman v. Dutch Farms, Inc., No.: 16-0157 (N.D. Ind. 2/24/2017)• Complaint not removable on federal question grounds

where allegations referenced violations of Federal Motor Carrier Safety Regulations (FMCSR).

• Where complaint does not contain any federal causes of action based on referenced provisions of the FMCSR, no substantial or disputed question of federal law is raised to permit removal.

Transfer from Federal to

State Court

Bartow v. Tri-Star Motors, Inc., 1084 WDA 2015 (Pa. Super. 12/13/2016) (mem.)

Patel v. Smith, 1244 EDA 2015 (Pa. Super. 7/22/2016) (mem.)

• Where federal court dismisses action for lack of jurisdiction and statute of limitations has expired, plaintiff must follow transfer procedures in 42 Pa.C.S.A. § 5103.

• Failure to file strict procedures of § 5103, can result in dismissal of state-courtaction on the basis of expired statute of limitations.

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Forum Non Conveniens

Finch v. American Premier Underwriters, Inc., et al., 1416 EDA 2015 (Pa. Super. 9/30/2016) (mem.)

•Hardship of a single fact witness is insufficient to overcome deference to plaintiff ’s selected forum.

•Inconvenience to medical providers and transfer of medical records are not oppressive to defendant itself.

•Common practice in PA of preserving trial testimony of physicians via videotape is a factor to be considered.

Bouldin v. Drudge, et al., No.: 17-089 (E.D. Pa. 2/14/2017) •Where collision occurred in Middle District of

PA, plaintiff ’s emergency medical care occurred in Middle District, medical and police witnesses lived in the Middle District, and none of the parties were residents of Pennsylvania, District Court granted venue transfer from Eastern District to Middle District.

•Fact that plaintiff ’s attorneys were located in Eastern District and none of attorneys on either side were located in Middle District was irrelevant to Court’s analysis.

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Filing Deadlines

Haines v. Hackenberg, 187 MDA 2015(Pa. Super. 10/28/2016) (mem.)

• Counsel assumed risk of non-delivery when sending appeal paperwork via UPS Next Day Air on the Thursday 12/18 before the Monday 12/22 filing deadline.

• Counsel has duty to call and track mailings when available.

• No abuse of discretion of trial court denying nunc pro tunc relief due to UPS’s failure to deliver package on time.

Heather Hayes

*

*Amended Rules of Juvenile Procedure *Rule 512. Dispositional Hearing: Will explicitly require juvenile’s counsel to review post-dispositional rights colloquy with juvenile

*Rule 610. Dispositional and Commitment Review: Will require post-dispositional rights colloquy when a juvenile is aggrieved (adversely affected) by a change in disposition.

*Rule 612. Modification or Revocation of Probation: Will require post-dispositional rights colloquy when a juvenile is aggrieved (adversely affected) by a change in disposition.

*Amended Admission Form

*Simplified to ensure understanding

*No significant changes from a practice standpoint

*Reforms in Detention *Ending solitary confinement, pepper spray and physical restraints

*ACLU filed case in Wisconsin

*Unconstitutional under the 8th and 14th Amendments

*Girls and boys in PA often kept in solitary confinement

*62% of suicides in juvenile facilities are by teens in solitary confinement

*If Wisconsin case successful, likely to see similar cases filed in PA

*Juvenile Lifers *Case of Qu’eed Batts – PA state Supreme Court

*Approximately 500 prisoners affected by Miller and Montgomery decisions in PA

*Juvenile lifers have been released in PA – case by case basis

*Joseph Ligon – turned down his release because wanted to be released with no conditions

*Social Media

*18 Pa. § 2709(a.1)(2)(i) Cyber Harassment of a Child

*18 Pa. § 6321 Transmission of Sexually Explicit Images by Minor

*Statutes for both direct prosecutor or MDJ to first consider diversionary program

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Chris Brown Bench Bar 2017 Materials

[my plan is to simplify this into a power point – this is my outline I would have with me to guide

my portion]

1. Intro – Overview of cases to be discussed:

a. Topics

i. Beneficiary residing in Estate real estate

ii. Separated surviving spouse’s interest in Estate

2. In re: Estate of Franklin A. Hawk, Non-Precedential Decision – See Superior Court

I.O.P. 65.37, 2016 WL 7176948

a. Non-Precedential Decision of the Superior Court of PA following the appeal from

the Order Dated May 22, 2015, in the Court of Common Pleas of Northhampton

County Orphans’ Court Division, filed on December 9, 2016

b. Background:

i. Hawk died intestate in 2012, spouse had predeceased him leaving 2

daughters as survivors who were named the Co-Administrators (Harka &

the Appellant).

ii. Appellant resided in Hawk’s home in Bethlehem from 2008 until the

property was sold in 2014.

1. Sale of the Property

a. June 2013, Harka filed a petition to compel action and

payment by co-administrator.

i. Sought to compel the sale of the Property;

ii. Receive payment for the fair rental value of the

Property plus interest; and

iii. To direct payment to Harka in an amount equal to

the value of any damage for waste committed on the

Property, plus interest.

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b. August 2013, Trial Court granted the relief in part directing

Co-Administrators to hire a realtor, holding the other

claims in abeyance.

i. Co-Administrators could not agree on a realtor

ii. Court appointed a realtor

c. December 2013, fair offer received, Harka petitioned to

cooperate with sale and fix the fair rental value.

d. March 2014, closing, proceeds held in escrow.

e. Harka petitioned to compel action and payment by

Appellant and brought claims for fair rental value and

waste on basis that Appellant lived at the Property from

2008 through closing.

f. May 2014, hearing held on the petition.

2. Recusal Claim

a. Prior to trial, Appellant moved for the trial court judge to

recuse himself based on allegations that the judge had

engaged in ex parte communications with the Realtor.

b. Claimed the judge knew the realtor in the community,

specifically alleging they had an encounter in November of

2013:

i. Realtor had contacted the trial court in November

2013 claiming he had contacted counsel for both

parties but had not heard back from Appellant’s

attorney. Court asked realtor by phone if he needed

the Court’s assistance to contact Appellant’s

attorney, realtor returned the call and informed the

Court that he did not require their assistance as he

had heard back

c. December 2013, realtor phoned the Trial Court again, this

time alleging that he had requested Appellant’s attorney to

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provide Appellant’s contact information but that the

attorney had instead provided his own phone number.

d. Court sent a letter to Appellant’s attorney relaying the

information from the realtor that attorney had purportedly

provided Appellant’s contact info but it was actually the

attorney’s and required that he provide the information by a

certain date.

e. In response, Appellant’s attorney wrote back and accused

the Trial Court of one-on-one communication with Harka’s

counsel and the realtor.

f. At the May 2014 hearing, Appellant moved for recusal

which the Court denied.

3. Decision on issues held in abeyance during Sale of Property

a. June 2014, Order denied claim for waste;

b. But granted Harka’s claim for fair rental value and ordered

the value be subtracted from Appellant’s share of the

Estate.

c. Trial Court found that Appellant lived at the property from

February, 2012 through March 2014 and assessed half of

the fair rental value for that period in calculating the value

to be subtracted.

d. Appellant filed exceptions, which were denied in

September.

4. Accounting

a. Trial Court directed the parties to file an accounting and a

schedule of distribution, which Harka did.

b. September 2014, at the time of Audit, appellant appealed

the Order denying the exceptions but it was quashed

because the Appellant had not appealed a final order.

5. Claim and Objections to Accounting

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a. Concurrently, Appellant filed a claim and objections to the

accounting.

i. Sought reimbursement for expenses she paid on

behalf of the Estate while living in the Property;

ii. Sought fair rental value of the Property against the

Estate for the storage of the Estate’s personal

property on the Property

b. Non-jury Trial held on the claims in December of 2014,

Opinion and Order dated February 6, 2015.

i. Expenses alleged: that Appellant paid property

taxes in 2013.

1. DENIED on basis that a tenant in common

who pays more than who pays more than his

or her proportionate share of the tax

obligations is not entitled to contributions

from co-tenants for the excess tax payment

ii. Expenses alleged: Appellant paid 2013

homeowner’s insurance, sewer bill in 2013, and an

electric bill in 2012

1. Trial Court determined Appellant was

entitled to reimbursement for ½ of these

expenses from the Estate.

iii. Expenses alleged: Values of appliances sold with

the house

1. DENIED because could not provide

evidence of value at time of sale.

iv. Storage of Estate’s personal property:

1. DENIED

c. Appellant filed exceptions to the Feb. 6, 2015 Order, which

the Trial Court denied in an opinion order dated May 22,

2015

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c. Appellant’s Issues on Appeal

i. Is there any legal basis – either under Title 20 or under Title 68 – for

Harka’s original monetary request?

ii. If there is some legal basis for Harka’s original request, did Harka meet

the legal standards for awarding a sum of money from one heir to the other

heir?

iii. Should the Judge have recused himself?

iv. Because the decision requires the Appellant to pay the Estate for the entire

fair rental value for the entire house, is the Estate then liable, to her for

storing its goods there?

v. Because the decision requires the appellant to pay the Estate for the entire

fair rental value for the entire house, is the Estate then liable, to her, to

reimburse her for real estate taxes that she paid separately?

d. Section 3311(a) of the Probate, Estates, and Fiduciaries Code, 20 Pa.C.S.A. §

3311(a) applies to this case:

i. § 3311. Possession of real and personal estate; exception.

(a) Personal representative. --A personal representative shall have the

right to and shall take possession of, maintain and administer all the real

and personal estate of the decedent, except real estate occupied at the

time of death by an heir or devisee with the consent of the decedent.

He shall collect the rents and income from each asset in his possession

until it is sold or distributed, and, during the administration of the estate,

shall have the right to maintain any action with respect to it and shall make

all reasonable expenditures necessary to preserve it. The court may direct

the personal representative to take possession of, administer and maintain

real estate so occupied by an heir or a devisee if this is necessary to protect

the rights of claimants or other parties. Nothing in this section shall affect

the personal representative's power to sell real estate occupied by an heir

or devisee.

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Comment – It is not contemplated that rents shall be collected from real

estate occupied by an heir or devisee unless needed for the payment of

claims.

e. The Superior Court reasoned that based upon recent case law, a beneficiary can

be held to pay a fair rental value under Section 3311 if the possession is

prolonged and/or causes undue delay and prejudice in the administration of

the estate

f. The Superior Court held that while Appellant resided on the Property since their

father’s death, there was no allegation in the petition that appellant delayed the

sale of the Property for her own benefit nor did the trial court find her liable for

any waste on the Property. Trial Court erred in awarding the Estate rent from

Appellant’s share.

i. Recent case law relied upon here:

1. In re Padezanin, 937 A.2d 475 (Pa. Super. 2007) – Beaver County

a. Addressed the question of whether an intestate heir is liable

for rent to an estate if heir continues to live on property

owned by the estate.

b. Here, there were 2 heirs, Sweesy and Florida, Sweesy did

not reside in the decedent’s real property at his time of

death, Florida did but eventually moved into another

property of the decedent. Both were assessed rent and

appealed.

c. Superior Court held that Sweesy WAS NOT eligible for

relief under §3311, because she did not live there at the

time of death.

d. Superior Court held that Florida WAS eligible for relief

under § 3311 from having to pay rent at the first place,

however she was NOT eligible for the second place

because she moved there after the time of death of the

decedent.

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e. Florida could be assessed rent for the first place if the

circumstances had been the estate was insolvent, which it

was not.

2. In re: Estate of Bouks, 964 A.2d 4 (Pa.Super. 2008) – Philadelphia

County

a. Decedent’s son lived with her at the time of her death and

continued to reside at the Property. Son and his sister were

co-executors and the beneficiaries of the estate.

b. Son desired to purchase the Property, but there was

disagreement over the purchase price. Son petitioned the

orphans’ court and sought to purchase Property at the tax

assessed value, which was about half of the value of the

two appraisals they had obtained, and this request was

denied.

c. Son was ordered to file an accounting and place the

Property for sale, but he failed to do so.

d. Sister filed a contempt petition. When faced with the

contempt petition, Son finally went through with the sale

(for even more than the highest appraisal). Son finally filed

an account.

e. Sister objected and argued that Son should be assessed rent,

awarding the estate rent for the time he occupied the

estate’s property.

f. Superior Court agreed and distinguished this case from

Padezanin on the basis that Son did not vacate the real

estate in a timely manner and engaged in conduct that

delayed the proper administration of the estate.

g. The Superior Court held that the chance encounter of the realtor with the judge

and the correspondence does not establish any sort of bias or appearance of

impartiality.

h. How could the Hawk situation been avoided?

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i. If the Decedent had written a Will designating 1 Personal Representative.

ii. More than one can give rise to unexpected issues.

iii. If the Decedent had retitled the property prior to death.

3. In re Estate of Racht – 2016 WL 2909701 – Appeal from Order in the Orphans’ Court

of Monroe County

a. Background

i. Decedent Bruce Racht was married to Fern Racht. After about 20 years of

marriage, they separated and Fern filed for divorce in Pike County, PA.

ii. 4 years passed with no activity in the case, Fern then filed a notice of

intention to proceed with divorce in 2011.

iii. No other action taken and parties remained legally married at Bruce’s time

of death.

iv. Prior to his death, both dated other people, lived apart, remained

financially independent except for occasional loans to each other, and also

remained friends after an initial period of acrimony. Fern lived with her

parents until they died, then lived in a mobile home titled solely in her

name, cohabitating with two different boyfriends.

v. Fern was granted Letters of Administration, Bruce’s sister Janet objected

and after a hearing the Letters were revoked. Fern appealed and the

Orphans’ Court affirmed the decision finding that Fern had forfeited her

right to a spousal share of the decedent’s estate.

b. Issues

i. On appeal, Fern raised the issue: Was the decision, upholding a prior

determination of the Register of Wills revoking letters of administration

previously granted to Appellant (Fern) and declaring that she had forfeited

her spousal share of her deceased husband’s estate, free from legal error

and supported by competent and adequate evidence in the record?

c. 20 Pa.C.S.A. § 2106(a)(1) applies to this case:

i. § 2106. Forfeiture. (a) Spouse's share. -- (1) A spouse who, for one year

or upwards previous to the death of the other spouse, has willfully

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neglected or refused to perform the duty to support the other spouse, or

who for one year or upwards has willfully and maliciously deserted the

other spouse, shall have no right or interest under this chapter in the real or

personal estate of the other spouse.

ii. The Pennsylvania Supreme Court has recognized that

1. The mere fact of separation does not create a presumption of

willful and malicious desertion.

2. Thus, where an allegation of desertion is based on separation, the

party advocating forfeiture must prove there was a desertion

without cause or consent of the other spouse.

3. However, once such a showing has been made, the parties’

separation is presumed a willful and malicious desertion and the

burden shifts to the surviving spouse to prove the contrary.

iii. Fern contends on appeal that any failure to perform the duty to support

was not refusal or willful neglect on her part but rather Bruce’s refusal to

accept her spousal services.

1. Court likened this case to the factually similar case of Talerico.

2. In re Estate of Talerico, A.3d, 2016 WL 1077968 (Pa.Super., filed

March 18, 2016).

a. In Talerico, Husband moved out of marital residence due to

marital difficulties. Wife initiated divorce proceedings, and

the parties continued to live separately with both engaging

in extramarital relationships. Wife died subsequent to

finalization of divorce proceedings. Husband was granted

Letters of Administration, and Wife’s sister filed a notice of

claim against Wife’s estate, maintaining Husband had

forfeited his claim as surviving spouse pursuant to §

2601(a)(1) because of his post-separation conduct. The

trial court agreed.

b. On appeal, the panel affirmed Husband forfeited his right to

a spousal share of decedent’s estate. Specifically, the

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Superior Court determined that Husband’s extramarital

affairs following the parties’ consensual separation “gave

rise to an inference of willful and malicious desertion that

Husband has failed to rebut”. Husband’s argument that

Wife had first engaged in an affair was irrelevant to the

Court’s analysis.

c. Where there had been a separation by mutual consent and

thereafter both spouses enter into adulterous relationships

with paramours, neither spouse may share in the other’s

estate, irrespective of who was the first to transgress.

3. The Court found that the reasoning in Talerico applies equally to

this case.

a. It is undisputed that Bruce and Fern separated in April 2007

and thereafter lived separately and remained financially

independent. Fern commenced divorce proceedings a year

later and 4 years later reinstated the proceedings.

b. During that time, both engaged in affairs.

c. Thus, irrespective of who engaged in an affair first, the case

law is clear that Fern’s extramarital relationships following

her separation from the decedent but prior to the

finalization of divorce gives rise to a willful and malicious

desertion under Section 2106(a)(1) of the PEF code.

4. Additional Cases to touch upon if additional time need be filled:

a. Estate of Sangiuliano – The court considered the procedural question of how an

ongoing administration of an estate and final orders relate.

b. Estate of Unglo – the court determined when a beneficiary delayed the sale of the

decedent’s residence for years that caused the estate to pay additional taxes and

insurance, the beneficiary’s share was reduced by half the fair rental value of the

property.

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c. In re Will of Graybill – The court determined that when there are two

beneficiaries incurring attorney’s fees for litigation and a third beneficiary who

did not participate in the litigation, all beneficiaries will benefit from the estate.