author: CAVANAUGH, Judge: BROSKY, Judge,

text:
    574 A.2d 77
    In re ESTATE OF Dr. Ronald G. LIVINGSTON, a/k/a Ronald Livingston, Deceased. Appeal of Margaret LIVINGSTON.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1989.
    Filed March 26, 1990.
    Reargument Denied June 1, 1990.

      James W. Carroll, Jr., Pittsburgh, for appellant.
    William Radcliffe, Uniontown, for John Livingston, participating party.
    Before CAVANAUGH, BROSKY and ROWLEY, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order dismissing exceptions to a decree nisi in the Court of Common Pleas, Fayette County. Appellant presents two issues for our review. First, whether the appellant, who is the surviving spouse of the decedent and was the administratrix of decedent’s estate, filed a timely claim against the estate; and second, whether the appellant’s claim is barred by the doctrine of laches. For the reasons that follow, we affirm the order of the lower court.

Ronald G. Livingston, the decedent, died on August 9, 1980, survived by his spouse, Margaret L. Livingston, the appellant herein, and his father, John L. Livingston, the appellee herein. At his death, the decedent was separated from his wife and resided with his father. Letters of Administration were granted to Mrs. Livingston on August 18, 1980.

On or about August 20, 1980, Mrs. Livingston inventoried a safe deposit box in the name of the decedent which contained certificates of deposit, some of which were in the joint names of the decedent and Mrs. Livingston, and some of which were in the decedent’s name alone. It is the certificates which were in the decedent’s name alone at the time of his death which are the subject matter of this appeal.

After she inventoried the safe deposit box, Mrs. Livingston had the certificates registered in the name of the decedent’s estate. Thereafter, the inheritance tax return was prepared, signed and filed by Mrs. Livingston, listing the certificates of deposit as estate assets. On November 6, 1980, not very long after the administration of the estate commenced, Mrs. Livingston paid herself an administratrix fee of $15,108 and paid an attorney fee of $15,108, both of which were made from estate funds. It appears that Mrs. Livingston performed no further duties as administratrix of the estate and she did not file an inventory, an account,- or complete the administration of the estate.

On June 9, 1987, almost seven years after the decedent’s death, Mrs. Livingston filed a claim dated May 22, 1987 against the estate. ' The basis of her claim was that the certificates were entireties property at the time of the decedent’s death; that because she was the surviving tenant, she was entitled to all of the money on deposit in the certificates; and that the certificates were, therefore, not estate assets. On June 15, 1987, decedent’s father, John L. Livingston, petitioned the court to remove Mrs. Livingston as administratrix because of the neglect of her duties and conflict of interest. On June 16, 1987, Mrs. Livingston was removed as personal representative and attorney Daniel L. Webster was appointed as administrator d.b.n. Attorney Webster filed an inventory, first and final account, and petition for distribution on January 7, 1988. Mr. Webster’s inventory treated the certificates as property owned solely by the decedent at the time of his death. The proposed distribution was $20,000 plus half of the residue to Mrs. Livingston and half of the residue to the decedent’s father.

Mrs. Livingston filed objections to the account and petition for distribution based on her claim that the certificates were entireties property.

The lower court, in denying Mrs. Livingston’s objections relied on Estate of Cohen, 469 Pa. 29, 364 A.2d 888 (1976). In Cohen, supra, the executrix alleged that the orphans court erred in disallowing her claim against the estate because the executrix failed to give notice of her claim against the estate until more than six years after loans, which were the bases of executrix’s claim, had been made. The supreme court affirmed, holding that the executrix did not toll the six-year statute of limitations.

Appellant did nothing under the above section to toll the statute of limitations. Appellant argues that since she was the personal representative of the estate, she was required to do nothing since she would have been giving notice to herself, a fruitless act. We do not agree with appellant’s position. Section 3384 was designed to give all persons who have an interest in the estate notice of possible outstanding claims. While the letter of the act does not cover the situation in the instant case, the spirit of the law required that appellant give notice of her claim and her failure to do so bars her claim. See Kuhlman’s Estate. Rehfuss’s Appeal, 180 Pa. 109, 36 A. 566 (1897).

Id. 469 Pa. at 34, 364 A.2d at 891.

Thus, our Supreme Court has clearly mandated that personal representatives of estates, who also have claims against the estate, must give notice consistent with the provisions set forth in 20 Pa.C.S.A. § 3384 in order to toll the applicable statute of. limitations.

Mrs. Livingston clearly was aware that the certificates were the property of the estate. She registered the certificates in the name of the estate and paid the inheritance tax on the certificates in her capacity as administratrix. At no time did Mrs. Livingston claim the certificates to be entireties property until her claim against the estate was filed almost seven years after the filing of the tax returns. Furthermore, the record indicates that in Mrs. Livingston’s petition to file a first and final account and to continue as administratrix, filed in June of 1987 after decedent’s father filed petitions to remove her as administratrix, she again listed the certificates as estate property. The argument asserted by appellant on appeal is totally inconsistent with her position during the time she acted as administratrix of the estate. Given the position stated by our supreme court in Estate of Cohen, supra, it is simply too late for Mrs. Livingston to now assert a new claim that the certificates are entireties property.

We agree with the trial court that in the circumstances of this case the proper statute of limitations to be applied is 42 Pa.C.S.A. § 5527 which provides for a six-yeár period. To decide if the claim filed on June 9, 1987 was timely filed, we must determine when the statute of limitations began to run. Various starting dates have been proposed by the parties, the date of death (August 8, 1980), the date letters of administration were granted to the administratrix (August 20, 1980), the date the safety deposit boxes were inventoried and the certificates of deposit discovered (August 20, 1980), and the date the inheritance tax return was filed (November 6, 1980). No matter which of these events commenced the running of the statute, the claim filed June 9, 1987 is beyond the six-year limitation and is barred.

Counsel for Mrs. Livingston mailed a letter dated February 18, 1986 to the attorney for the estate, which Mrs. Livingston now alleges tolled the statute. However, that correspondence does not state a claim against the estate. It is addressed to counsel and suggests that alleged errors made by counsel in the estate administration process had given Mrs. Livingston in her capacity as “heir and surviving spouse” a potential claim against counsel. That letter concludes, “We are not anxious to make a claim against you for this amount, so we are proposing the above resolution.” In order to toll the statute of limitations, an individual with a claim against an estate must do one of the acts specified in 20 Pa.C.S.A. § 3384 entitled Notice of Claim. Mrs. Livingston, as heir and claimant, did not do any of the acts specified in that section. The correspondence of February 18, 1986 to the attorney of record for the estate was ineffective as it failed to state a claim against the estate. Therefore, Mrs. Livingston’s failure to do any of the enumerated acts to toll the statute bars her claim.

Furthermore, Mrs. Livingston’s claim is barred by the doctrine of laches. The application of laches depends on whether the complaining party is guilty of a want of due diligence in failing to assert his rights, which works to another’s prejudice. In re Estate of Dorothy M. Doerr, 388 Pa.Super. 474, 565 A.2d 1207 (filed Oct. 31, 1989); In re Estate of Marushak, 488 Pa. 607, 413 A.2d 649 (1980); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977). Laches requires not only. a passage of time, but also a resultant prejudice to the party asserting the doctrine. In re Estate of Dorothy M. Doerr, Id.; Young v. Hall, 421 Pa. 214, 218 A.2d 781 citing (1966), Miller v. Hawkins, 416 Pa. 180, 205 A.2d 429 (1964). Clearly laches is applicable because during the almost seven years that Mrs. Livingston was administratrix, the decedent’s father was denied use of his share of the estate. Finally, a review of the record finds no reasonable basis why Mrs. Livingston did not assert her claim at an earlier date.

We add the following in reply to the Dissenting Opinion of Brosky, J.: The dissent states at, page 215: “The majority’s focus on what they believe to be an inordinate delay in the filing of an inventory seems to me nothing more than a smoke screen ... Appellant is not an attorney and could hardly be expected to understand the nature of her interest in the certificates and could easily have been under certain legal misapprehensions regarding them.”

The appellant was represented by counsel from the outset of the estate’s administration and at the very beginning of the administration, she paid herself, from estate assets, a substantial administrator’s commission of $15,108.00 and a counsel fee of the same amount to her lawyer.

Notwithstanding the delay of many years in filing an inventory by appellant, she nevertheless prepared an inventory in or about June, 1987, when she was still attempting to continue as administratrix, that listed the certificates in question as estate property. It appears therefore that the appellant herself treated the certificates of deposit in question for some seven years as assets of the decedent.

The appellant filed an inheritance tax return setting forth that the certificates were property of the decedent and subject to inheritance taxes. The Inheritance and Estate Tax Act, 72 Pa.C.S. § 1736(a) provides in pertinent part:

(a) Persons responsible for returns.—
The following persons shall make a return:
(1) The personal representative of the estate of the decedent as to property of the decedent administered by him. (Emphasis added.)

Inheritance taxes were paid by the appellant on assets belonging to the decedent, including the certificates which she now claims. A claimant, as appellant, may not administer an estate for many years, pay herself an administrator’s commission and substantial lawyer’s fees, prepare an inheritance tax return and pay taxes based on assets as being decedent’s property, and-then after she is removed from serving as a personal representative for conflict of interest, and after the statute of limitations has run, take a totally inconsistent position that the assets didn’t belong to the estate after all, but were in reality, hers. The law properly does not countenance such activity.

We do not understand the reasoning of the dissent in the following statements at pages 215 & 216:

Furthermore, as an adminitratrix of the estate it would not necessarily be inconsistent for her, in her administrative capacity, to list the certificates as estate assets and then turn around and claim them, acting in her own self interests, as a survivor. In fact, given that the certificates were titled in decedent’s name alone at the time of his death, this may have been the most legally expedient approach to take in keeping with her fidicuary duty as executrix of the estate. (Emphasis added).

It seems to us that the appellant would clearly violate her fiduciary duty in listing certificates of deposit as assets in the inheritance tax return which were not assets of the decedent’s estate, and to pay inheritance taxes from the estate which would not have been due, if the appellant’s contention is correct.

Finally, the dissenting opinion states at slip opinion, page 209:

However, the majority appears to have little difficulty in concluding that the term “claim” encompasses a contention that personal property has been wrongfully included in an inventory and appraisement as property of the decedent.

The appellant contends that the certificates of deposit were “wrongfully included” in the inventory and appraisal and yet, the inheritance tax return she filed and the inventory she prepared and proposed filing, included these same assets.

We affirm the order of the court below.

BROSKY, J., files dissenting opinion.

BROSKY, Judge,

dissenting.

I dissent. The issue in this case, reduced to its most essential form, is whether a dispute as to ownership of property, listed by an administrator or executor of an estate in an inventory as estate property, must be presented as a claim within the dictates of 20 Pa.C.S. §§ 3381-3389. The majority concludes that it must and also finds appellant’s assertion of ownership to be outside of the applicable statute of limitations, thus, time barred. I believe there is a total lack of authority and logic to support this position, thus, my dissent.

Appellant was the wife of Ronald Livingston who died intestate on August 9, 1980. Appellant was issued Letters of Administration on August 18, 1980. On August 20, 1980, a safe deposit box registered to decedent was inventoried and found to contain, among other things, eleven certificates of deposit in the name of decedent alone. There was substantial evidence to bolster appellant’s contention that the certificates were funded with certificates of deposit in like sums titled in appellant’s and the decedent’s names. These certificates are the subject of the current litigation.

Administration of the estate proceeded for several years although, as late as February 18, 1986 neither an inventory nor a final account had been filed. At that time, Ruth Warman, Esquire, the attorney for the estate received a letter from James Carrol, Esquire, indicating that he had been retained by appellant to protect her interests as an heir and surviving spouse of the decedent. Appellant subsequently filed a petition to continue as administratrix and for approval to file an inventory and account which was countered by a petition for removal of personal representative filed by John Livingston, father of the decedent and the other primary party in interest. The court, recognizing appellant’s conflict of interest, issued an order removing appellant as administratrix and appointing another individual administrator.

In January, 1988, an inventory and appraisement, first and final account and petition for distribution and proposed decree were filed. The inventory listed as estate property all property bearing the name of the decedent alone, including the certificates of deposit. On or about February 26, 1988, appellant filed objections to the petition for distribution alleging that the certificates of deposit were created from, or consisted of, marital funds and retained an entire-ties status up until the death of the decedent and, thus, passed by survivorship to appellant. John Livingston filed an answer to the objections claiming the statute of limitations barred appellant’s claim against the estate. A hearing was held on the objections and a decree nisi was filed denying wife’s claim on the limitations grounds. Exceptions were filed but dismissed, leading to this appeal.

It should be noted, initially, that the term “claim” is not defined at title 20, nor has the majority offered a definition of that term, of either their own devolution or from other authority, within the meaning of section 3381 et seq. However, the majority appears to have little difficulty in concluding that the term “claim” encompasses a contention that personal property has been wrongfully included in an inventory and appraisement as property of the decedent. They have little difficulty making this conclusion even despite the fact that their holding here would work to require such an assertion be made even before the inventory is filed.

Even though the term “claim” is not defined, there are indications that the term is meant to encompass, or has been applied consistently to, claims for monetary compensation allegedly owed by the decedent to the “claimant”, grounded in either contract or tort. For instance, section 3383 states that the death of an individual shall not stop the running of a statute of limitations applicable to any claim against him. The language “claim against him ” certainly implies relevance to personal actions against the decedent. Furthermore, the official comment to § 3386 states: “[t]he word “claimant” rather than “creditor” is employed to include persons claiming on a tort as well as those claiming under contract.” It is very noteworthy that both actions mentioned are personal actions against the decedent, tort and contract. Thus, the clear implication from sections 3381-3389 is that there are limitations periods applicable to personal claims of debt or liability against the decedent, whether based in tort or contract. However, these sections do not necessarily compel a conclusion that disputes over title to property are encompassed within them.

There is a substantial difference in the nature of a claim against another individual personally and a “claim” that one is the rightful owner of certain property. First of all, claims against a person, are exactly that. They relate to a person’s legal liability to another. Furthermore, claims against a decedent personally will be accounted for as debt of the estate and the filing of a claim helps to establish, presumptively, the extent of the decedents legal debts. As indicated above, such claims against the person are subject to a limitations period which continues to run despite the death of the decedent. In contrast, disputes as to ownership of property are not, in their true essence, personal against another. They are essentially in rem, relating to the status of ownership or title of the subject property, a status which will not likely change over time. Further, they relate to the assets of the estate, and, as will be established, infra, the inventory acts as a vehicle for the presumptive establishment of the extent of estate assets.

There is nothing illogical in requiring a written claim of debt against the decedent’s estate while allowing objections to claims of ownership to await such time as an inventory and appraisement is filed. Quite curiously, in contrast to the great deal of authority and indications that the term “claim” refers to personal claims against the decedent, the majority has not offered any authority or other factor indicating that it encompasses a dispute over ownership of property and the propriety of including it in an inventory. This fact alone should lead one to question the majority’s conclusion. When one cuts through the rhetoric, the majority is relying, in essence, upon the general appealability of the proposition that anything that could be considered a “claim” is encompassed within that term in §§ 3381-3389.

Appellee argued below that the general provisions of 20 Pa.C.S.A. § 3381 to § 3389 required the filing of a claim of ownership in the certificates. When appellee’s argument is closely scrutinized it becomes apparent that he predicates this position on a characterization of appellant’s claim as a personal action against the decedent. Appellee, perhaps rather craftily, focuses on what he contends appellant would be required to show in order to be successful in her quest. Specifically, appellee asserts that appellant would have to show “wrongful appropriation” of marital funds on the part of decedent in order to prevail. Thus, by focusing attention on a “wrongful appropriation” of funds, appellee has made appellant’s claim to sound as a personal action against the decedent. This is not without utility, as such actions, in general, are, as just illustrated, subject to the provisions set forth at 20 Pa.C.S.A. §§ 3381-3889.

By characterizing appellant’s action as a personal one against the decedent, appellee has been able to mask the true nature of the inquiry which would be required. As indicated above, what has been lost in the development of appellee’s argument is the fact that disputes over ownership of property are essentially in rem proceedings. Although perhaps revolving around actions of the parties, the claim is not against another individual personally, but is a claim in the property itself. Clearly, appellant’s claim can be classified in this manner.

Contrary to what appellee has implied, the crux of appellant’s case here is not that appellant is entitled to damages as a result of decedent’s wrongful appropriation of marital funds. Rather, the crux of appellant’s case is that despite the decedent’s effort to appropriate the funds to his own exclusive use, such effort did not destroy the entireties nature of the property. Even though titled in decedent’s name alone, the certificates retained entireties status and passed to appellant upon decedent’s death (see discussion infra). Clearly this claim is not a personal claim of debt against the decedent.

There is substantial merit to appellant’s position. If appellant can demonstrate that the certificates were funded with entireties property there is ample authority to indicate that the certificates would remain entireties property, and . thus would have passed to appellant by operation of law upon the death of the decedent, despite any contrary intent of the decedent which could be inferred from the decedent’s efforts to substitute certificates bearing his name alone for the ones previously owned jointly. Cases particularly on point are, Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968) and Cingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986).

Although, as has been abundantly demonstrated, the procedure for making a claim of debt against the estate is rather straightforward and adequately defined, the procedure for challenging the characterization of property as estate property or non-estate property is far less clear. With regard to the procedure for challenging title to property, our Supreme court stated:

The function and object of an inventory and appraisement in a decedent’s estate is to fix presumptively the existence of property in the possession of the fiduciary and the value thereof. This is only prima facie evidence of ownership and value. Such listing does not affect the true ownership and value. [Authorities cited]. The question of ownership is of interest to creditors, federal and state taxing authorities, and others. Such title, therefore, should not be finally determined until after an audit, with due statutory notice....

Estate of Donsavage, 420 Pa. 587, 218 A.2d 112, 116 (1966). Although this passage does not expressly negate the need for the filing of “claims” of ownership to disputed property, neither does it set forth a requirement for such a filing. However, by setting forth the purpose of the inventory, to presumptively set forth the existence and value of estate property, it would seem to logically follow that requiring a formal assertion of ownership of property prior to the filing of the inventory would be superfluous as there could be no conflict as to ownership or title to property until such time as the estate formally asserted title or ownership to it.

Perhaps not coincidentally, the majority has provided us with no explicit language from statute or case law which establishes the need to make a written claim of ownership of property in the executor’s possession prior to the filing of an inventory and appraisement. The lone case cited by the majority and relied upon to dispose of this issue, Estate of Cohen, 469 Pa. 29, 364 A.2d 888 (1976), dealt with a claim for money allegedly owed the claimant pursuant to a loan made to the decedent. In other words, a personal debt. Of course, this would be an action in contract and would fall squarely within the commentary to § 3386.

Furthermore, as illustrated above, the inventory does not affect true ownership of the property. If the property truly belongs to one, it would seem incongruous to require one to file a claim for it, particularly before it is known whether the executor or administrator is going to assert ownership of it or otherwise contest one’s right to it. As a practical matter, it may be advisable for an individual to notify the administrator of one’s position where it is not obvious. However, I cannot agree that there is an applicable statute of limitations for asserting a claim of ownership which runs prior to the development of a formal dispute or inconsistency in such claims of ownership. Such a rule would be logically incongruous.

The majority has strained their credibility by making a simplistic generalization in an apparent hope that it will satisfy the demands of a seemingly complicated legal question, all the while providing no authority on point. The majority has failed to cite one case where an exception to an inventory asserting a dispute as to title of property was disallowed for failing to have lodged a prior written claim within some certain period of time; and although there are numerous cases available where personal actions or “claims” against the estate have been found barred for failure to file a timely written claim, the majority has not offered one case where the same holding was applied to an assertion-of ownership of an asset claimed by the estate to be property of the decedent’s. Their failure to provide authority on point should lead a reasonable jurist to question their result.

In contrast, appellant has supplied numerous cases which indicate that disputes to title of property are made by exception to inventory and account. Appellee asserts that the majority of appellant’s authority involves a factually different scenario, the situation where potential assets of the decedent were left out of the inventory and the administrator/executor was being compelled to include property in the inventory. This is true. However, there are several cases where this same procedure was utilized to assert a disagreement or dispute to the executor’s inclusion of property in an inventory or to otherwise assert that property claimed to be estate property was not estate property, including a case where it was asserted the property passed upon death to a surviving spouse.

In Estate of Evans, 467 Pa. 336, 356 A.2d 778 (1976), our Supreme Court considered a case involving a dispute over ownership of the contents of a safe deposit box. The contents were listed in the inventory and filed by the executor. Appellant claimed they were the subject of an inter vivos gift to herself and, therefore, should not be included in the estate, but, rather, should be given to her. The procedural history of the case indicates that the appellant there objected to the inventory, proposed schedule of distribution and final accounting of the executor on the aforesaid basis. There is no mention of a written claim being filed or the need for filing such a claim.

In Holmes’ Estate, 414 Pa. 403, 200 A.2d 745 (1964), an unusually similar fact pattern was presented. There the decedent, prior to his death, had stock certificates, which had been issued in his and his wife’s name, surrendered to the issuing corporation and reissued in his name and those of two nephews. Upon his death the administrator listed the stocks as estate property. The widow responded by filing exceptions to the inventory and final account and asserting ownership. There is no mention of a prior written claim being filed.

In Kahler Estate, 6 D. & C.2d 1 (1955), the Orphan’s Court of Columbia County considered a challenge to an inventory on grounds that certain estate property had not been included, and also that certain property that had been included was not properly includable, but was instead, entireties property which passed to the surviving spouse; the exact issue raised here. The issues were raised, according to the history outlined in the case, by the filing of a petition for citation on the executrix to file a supplemental inventory. This petition was filed in response to the executrix’s filing of an inventory believed to be in error. No indication for the need to file a claim is included in the opinion despite several pages of text devoted to procedural matters.

Perhaps no argument can raise as much doubt as to the majority’s position than the examination of what could have legitimately transpired had appellant simply chosen a different approach to the dispute. As executrix of the estate it was appellant’s duty to prepare and file an inventory and appraisement. Appellant could have asserted her claim of ownership in a negative fashion by simply regarding the property as hers by survivorship and excluding them from the inventory. Then had anyone, including appellee, questioned her right to the certificates, they would have been forced to file a petition to file supplemental account or to lodge an objection to the account at which time there would have been a hearing to determine title. Since she would not have been filing a claim against the estate for the property there would have been no need to file a written claim at all. From all appearances, this is exactly what had transpired in numerous reported cases. For instance, Estate of Miller, 464 Pa. 323, 346 A.2d 761 (1975), involved a situation where the executor sold fifty thousand dollars ($50,000.00) worth of stock which had been owned by the decedent prior to his death. The executor claimed the proceeds had been the subject of a inter vivos gift. When the proceeds of the sale had not been included in the first and final account, a co-trustee filed objections to the account which resulted in court proceedings to determine ownership of the proceeds at the time of decedent’s death. Similarly, in In Re Estate of Donsavage, 420 Pa. 587, 218 A.2d 112 (1966), the decedent’s widow, in response to the filing of an inventory which failed to include stock of various companies which had been owned by the decedent, filed a petition for citation upon the personal representative to show cause why she should not file a supplemental inventory including the stock which the personal representative alleged was the subject of an inter vivos gift.

I do not believe that a slight change in procedural approach should have such a diverse effect on the status of appellant’s claim of ownership. There should be a reasonable amount of symmetry with regard to legal rights, and no sound rule of law would be capable of blatant manipulation which would appear possible in the present factual context. If there exists an acceptable reason why appellant’s claim of ownership would remain valid by her exclusion of the certificates from the inventory but would be considered invalid by including them, I am not aware of it.

The majority’s focus on what they believe to be an inordinate delay on the appellant’s part in the filing of an inventory seems to me to be nothing more than a smoke screen. True, there was a delay which would seem lengthy. However, had any interested party felt truly prejudiced by the delay they could have petitioned the court to force appellant to file the account. Also, the majority’s focus on the appellant’s change in position, having originally listed the certificates as estate property then asserting ownership of them, is similarly without relevance. Appellant is not an attorney and could hardly be expected to understand the nature of her interest in the certificates and could have easily been under certain legal misapprehensions regarding them. Furthermore, as an administratrix of the estate it would not necessarily be inconsistent for her, in her administrative capacity, to list the certificates as estate assets and then turn around and claim them, acting in her own self interests, as a survivor. In fact, given that the certificates were titled in decedent’s name alone at the time of his death, this may have been the most legally expedient approach to take in keeping with her fiduciary duty as administratrix of the estate.

Particularly in the absence of a demonstrated prejudice, I cannot understand the majority’s apparent willingness to deprive a widow of what may possibly be her rightful property, or at least an opportunity to prove that it belongs to her, without offering something of more legal soundness to support their position. The lone citation of a factually inapposite case is simply, in my opinion, insufficient.

For the above reasons, I dissent.

      . 20 Pa.C.S.A. § 3384 provides:
      "(a) Written notice. — Written notice of any claim against a decedent given to the personal representative or his attorney of record before the claim is barred shall toll the statute of limitations.
      "(b) Acts equivalent to written notice. — Any of the following acts by a claimant shall be equivalent to the giving of written notice of a claim to the personal representative:
      “(1) Instituting proceedings to compel the filing of an account.
      “(2) Bringing an action against the personal representative in any court having jurisdiction of the claim and having the writ or pleading duly served on the personal representative.
      “(3) Substituting the personal representative as a defendant in an action pending against the decedent.
      "(4) Receiving a written acknowledgment by the personal representative or his attorney of record of the existence of the claim."

      . 42 Pa.C.S.A. § 5527 provides in pertinent part:
      § 5527. Six year limitation

        The following actions and proceedings must be commenced within six years:
      (6) Any civil action or proceeding which is neither subject to another limitation specified in th is subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation).
      See also Clemmens v. Security Peoples Trust Co., 24 D & C 3d (1981).

      . Appellant’s proposed account shows that on November 16, 1980, Pennsylvania Inheritance taxes were paid in the amount of $13,883.82 and in 1981 the balance of inheritance taxes was paid in the amount of $612.60. If the certificates in question belonged to the appellant, rather than the decedent, most of the inheritance taxes would not have been due. Appellant’s proposed inventory listed the entire estate as valued at $163,844.06 which included $141,800.00 of certificates which she now contends belong to her. The estate would have had a gross value of only $22,000.00 if appellant's contention is correct, and counsel fee and administrator’s commission amounted to over $30,-000.00.

      . The majority responds to this point by asserting that appellant was represented by counsel from the outset of the estate’s administration. However, it appears that the majority is mistaking the attorney for the estate as appellant’s attorney. In support of their position, the majority states that appellant paid herself a substantial administrator’s fee and a counsel fee of the same amount to her lawyer. This statement is contradictory upon its face. If the attorney referred to was paid a fee from estate assets, the attorney in question would almost certainly be regarded as an attorney for the estate, not appellant’s personal attorney, and owe a duty of zealous representation to the estate. Thus, to the extent there was a conflict between appellant’s right as administrator and as surviving spouse, the interest of the attorney would be contrary to the interest of appellant as surviving spouse. Clearly, under the present facts, the attorney for the estate would have an adverse interest to appellant's right as a surviving spouse and appellant cannot be regarded as having been represented, in personal interest, by counsel from the beginning of administration.

      . The majority’s response to this point appears to demonstrate a misunderstanding of the nature of the duty owed the estate. The dilemma facing appellant is the fact that she was put in a position of wearing, figuratively speaking, two hats. On the one hand she was . administratrix of the estate, on the other she was the surviving spouse who was allegedly the victim of an attempt to secrete entireties property by the decedent. It was this conflict of positions that ultimately led to her removal as administratrix. However, until that removal, her duty as an administratrix, at the very least, arguably required her to list the certificates as estate property, because, upon their face, they bore only the name of the decedent. However, in protection of her own self interest, she, becoming aware of the source of the certificates, had, and still has, a substantial argument that the certificates are hers by survivorship, notwithstanding the fact that they bore only the decedent’s name. Thus, contrary to the assertion of the majority, it would more likely have been viewed a breach of her fiduciary duty if she, as administratrix, had failed to include the certificates in the original tax return. Certainly, such an effort to exclude the certificates would have likely been met with opposition by both the taxing authorities and interested heirs, including the decedent’s father.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    574 A.2d 86
    COMMONWEALTH of Pennsylvania v. John McCLOY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1989.
    Filed April 10, 1990.
    Reargument Denied May 22, 1990.

      Stanley M. Shingles, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, BROSKY and WIEAND, JJ.
   WIEAND, Judge:

Based upon information supplied by a confidential informant, police obtained a warrant authorizing a search of the residence at 7330 Passyunk Avenue, Philadelphia. When the warrant was executed on January 15, 1986, the police seized approximately eighteen grams of methamphetamine, thirty-three grams of hashish, and ten grams of marijuana, plus thirteen thousand, seven hundred seventeen ($13,717) dollars in cash, a cutting agent and two scales. The owner of the house, John McCloy, was arrested and charged with possession of a controlled substance and possession of a controlled substance with intent to deliver. Following trial by jury, McCloy was found guilty as charged. Post-trial and supplemental post-trial motions were denied, and McCloy was sentenced to serve a term of imprisonment of not less than five (5) years nor more than ten (10) years. On direct appeal from the judgment of sentence, appellant has raised numerous issues. Only two of those issues warrant discussion. These arguments are that (1) the trial court erred when it refused to allow a substance abuser to testify as a defense expert, and (2) trial counsel rendered ineffective assistance because he was burdened with a personal conflict of interest.

Philadelphia Police Officer John Caserta testified as an expert witness for the Commonwealth and opined that the drugs seized at appellant’s residence had been possessed for purposes of distribution and not for personal use. Caserta’s opinion was based upon the quantity, value and types of drugs seized and upon the manner in which they had been packaged and stored. He estimated that methamphetamine sold for approximately one hundred ($100) dollars per gram and said that it was unlikely that a drug user would be taking methamphetamine, a stimulant, and hashish, a hallucinogen, at the same time.

Appellant offered in rebuttal the testimony of Herbert Ackerman, a fifty-seven year old drug user. At a hearing held out of the presence of the jury, Ackerman said that he had been a user of various drugs for approximately forty-five years and had used methamphetamine off and on for about twenty years. He also said that he had never used hashish and had not used marijuana for many years. However, he knew of other drug users who had taken hashish or marijuana with methamphetamine to ease the nervousness caused by methamphetamine. While he claimed to have been out of circulation for over a year, Ackerman said that he had purchased methamphetamine on three occasions in the year preceding appellant’s trial for about seventy ($70) dollars per gram. Appellant offered Ackerman as an expert to testify regarding the current price of methamphetamine and the practice of drug users who took methamphetamine and hashish at the same time. The trial court ruled that Ackerman was not qualified to testify as an expert and excluded his testimony. Appellant' contends that the court’s ruling constituted error.

The applicable law has been summarized as follows:

To qualify as an expert witness, a witness need only have a “reasonable pretension to specialized knowledge,” on a subject for which expert testimony is admissible. Commonwealth v. Washington, 235 Pa.Super. 339, 340 A.2d 896 (1975). An expert’s pretension to specialized knowledge may be based upon practical, occupational, or other experiential training; the expert need not have gained expertise through academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The determination of whether a witness is qualified to offer an expert opinion on a particular subject is a matter addressed to the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Ellis, supra; Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

Commonwealth v. Pearsall, 368 Pa.Super. 327, 332, 534 A.2d 106, 109 (1987). See also: Commonwealth v. Riffert, 379 Pa.Super. 1, 21, 549 A.2d 566, 576 (1988); Commonwealth v. Samuels, 354 Pa.Super. 128, 137, 511 A.2d 221, 226 (1986), rev’d on other grounds, 516 Pa. 300, 532 A.2d 404 (1987).

In response to appellant’s post-trial motions, the trial court explained its ruling that Ackerman was not qualified to testify as an expert as follows:

In the opinion of this Court, Mr. Ackerman did not qualify to testify on the market price of hashish or methamphetamine or to contradict Officer Caserta’s experience that a drug user does not generally consume the two. Although a drug abuser for many years, he indicated very limited experience with methamphetamine users and knew little about hashish and abusers of that drug. He testified that he never purchased hashish, had been only a sporadic user of methamphetamine and had no knowledge or experience of the current street price of those drugs. His pretense that he knew the street price is based on skimpy information that eight years before, while in prison, he discussed street price of drugs with fellow inmates. Although he testified to having been drug free and out of circulation of the drug culture for more than a year, he testified that he knew the street price because on three occasions (May, August and two weeks before) he had purchased methamphetamine, all from a center city location. In making his purchases he had not shopped around.
While the witness might qualify to opinionate as to whether the substance was methamphetamine, see generally, Commonwealth v. Harris, 186 Pa.Super. 59, 140 A.2d 344 (1958) (testimony of drug addict identifying substance sold to her by defendant [as] heroin admissible), Commonwealth v. Aikens, 179 Pa.Super. 501, 118 A.2d 205 (1955) (same), in our considered judgment he did not have that sufficient current experience that would have made him knowledgeable to tell the jury as to the current price of the drug, or if it’s common for a drug abuser to use an hallucinogenic drug with a stimulant drug. Cf. People v. Fasanaro, 134 Misc.2d 141, 509 N.Y.S.2d 713 (1986) (generalized, unqualified and unspecified allegations of training and experience of even a drug user are insufficient allegations of expertise). Specific contrary experience does not rebut general data acquired through long time continued interest and study.

We perceive no abuse of discretion in the trial court’s ruling. Despite a long history of drug abuse, Ackerman was able to demonstrate at best that he had only a passing familiarity with the drugs at issue in the instant case and very little knowledge of the general practices of drug abusers. Therefore, the trial court could properly conclude that the witness lacked the specialized knowledge necessary to testify as an expert witness.

Appellant’s trial was held in November, 1986. He argues on appeal that his trial counsel then labored under an impermissible conflict of interest because, while representing appellant, counsel was also cooperating with the Federal Bureau of Investigation (F.B.I.) in an unrelated investigation of corruption in the Philadelphia judicial system. An evidentiary hearing was held by the trial court on this issue, at which defense counsel, Barry H. Denker, Esquire, testified that in August, 1986, less than two months after undertaking appellant’s defense, he had been confronted by the United States Attorney’s Office with evidence that he had bribed a state parole officer. Fearing a federal prosecution, Denker agreed to cooperate with the F.B.I. in a continuing investigation. His role was to continue representing clients as he would normally do, and, if any offers of bribes were made to or through him, to report such offers to the F.B.I. Denker was not authorized to act on his own initiative to obtain evidence by his own design, but in some instances, at the direction of the F.B.I., Denker actually made payments to judges in response to specific requests to offer bribes. Ultimately, as a part of his agreement with the federal authorities, Denker withdrew from the practice of law in November, 1986, shortly after appellant’s trial had been concluded. Charges were brought against Denker in September, 1987, and he then entered a negotiated plea of guilty to two counts of mail fraud. Appellant was not aware of Attorney Denker’s role in these investigations because, as a part of his agreement with federal authorities, Denker did not disclose to anyone his involvement in the F.B.I.’s investigation.

It must be observed at the outset that Denker’s representation of appellant was wholly unrelated to the F.B.I. investigation of judicial corruption in Philadelphia. This is not disputed. Appellant contends nonetheless that trial counsel’s unrelated cooperation with the F.B.I. was a direct conflict of interest and rendered his representation of appellant constitutionally ineffective. Counsel’s concern for mitigating the consequences of his own criminal conduct, appellant argues, was at variance with his duty of loyalty to the client.

“Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). To meet this burden appellant must plead and prove that:

1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, [158-160], 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, supra. See also: Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Harner, 377 Pa.Super. 229, 243, 546 A.2d 1241, 1247 (1988); Commonwealth v. Riggins, 374 Pa.Super. 243, 248-249, 542 A.2d 1004, 1007 (1988). When the claim of ineffective assistance of counsel is based upon an alleged conflict of interest, however, prejudice will be presumed where counsel is shown to have been burdened by an actual conflict of interest. See: Commonwealth v. Buehl, 510 Pa. 363, 379, 508 A.2d 1167, 1175 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Commonwealth v. Smith, 380 Pa.Super. 619, 629-630, 552 A.2d 1053, 1059 (1988). To prevail in the instant case, it was necessary for appellant to “demonstrate[ ] that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” Commonwealth v. Buehl, supra, quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347 (1980). See also: Commonwealth v. Smith, supra; In re Saladin, 359 Pa.Super. 326, 331, 518 A.2d 1258, 1261 (1986). The showing of a mere possibility of a conflict of interest “is insufficient to impugn a criminal conviction.” Cuyler v. Sullivan, supra at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348.

The authorities relied upon by appellant to support his claim that counsel was burdened by an actual conflict of interest are inapposite to the factual scenario in this case. The cases cited in appellant’s brief illustrate that an actual conflict may be found in any of the three following situations: (1) where counsel is not authorized to practice law at the time he represents the defendant, see: Solina v. United States, 709 F.2d 160 (2d Cir.1983) (trial counsel had not passed bar exam); (2) where counsel was under investigation for or was engaged in criminal activity related to that with which the defendant had been charged, see: Govern- merit of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir.1984) (trial counsel was potentially subject to indictment for aiding defendant to destroy evidence and was called as prosecution witness at trial); United States v. Cancilla, 725 F.2d 867 (2d Cir.1984) (trial counsel may have been engaged in similar criminal activity with a possible co-conspirator of defendant); and (3) where counsel is under investigation or indictment by the same prosecutor’s office as is prosecuting the defendant, see: United States v. DeFalco, 644 F.2d 132 (3d Cir.1979) (appellate counsel was under indictment and entered guilty plea at behest of the same U.S. Attorney’s Office during pendency of defendant’s appeal), United States v. McLain, 823 F.2d 1457 (11th Cir.1987) (trial counsel was under investigation by same U.S. Attorney’s Office before and during defendant’s trial). These decisions are not on all fours with the facts of the instant case.

Here, there was no direct nexus between trial counsel’s cooperation with the federal authorities and his representation of appellant in a state prosecution on drug charges. Appellant has also failed to show that counsel’s interest in cooperating with the federal authorities, in order to mitigate his own potential criminal liability for bribing a parole officer, had any adverse effect on counsel’s ability to represent appellant effectively. Counsel testified at a post-trial evidentiary hearing that the F.B.I. had placed no restrictions upon his law practice and opined that the possibility of federal charges being brought against him, as well as his cooperation in the federal investigation, had had no effect on his representation of appellant at trial. Our own review of the record discloses that in all respects trial counsel provided a vigorous and skilled defense and made strategic and legal decisions which were reasonably calculated to serve appellant’s interests.

In Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988), the defendant sought to withdraw his guilty plea because, subsequent to trial, his attorney’s authority to practice law had been revoked for making false statements in his application for admission to the bar. The defendant asserted that the revocation of counsel’s admission to the bar had deprived him of his Sixth Amendment right to be represented by a lawyer. The Superior Court rejected this argument, holding that the defendant’s attorney had been a member of the bar while representing the defendant at trial. Central to the Court’s decision was the fact that counsel’s misconduct, for which his admission to the bar had been revoked, was not related to any conduct in the defendant’s case. Id. at 499-503, 546 A.2d at 635-637. See also: United States v. Mouzin, 785 F.2d 682 (9th Cir.1986), cert. denied, 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 577 (1986); United States v. Hoffman, 733 F.2d 596 (9th Cir. 1984), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984). The Vance Court also rejected the defendant’s argument that he had been denied effective assistance of counsel because his attorney had been using cocaine while representing him. In rejecting this claim of ineffectiveness, the Superior Court reviewed the record and uncovered no basis for concluding that counsel’s use of cocaine had affected the quality of counsel’s advocacy. Id. at 503-505, 546 A.2d at 637-638. See also: Commonwealth v. Burton, 491 Pa. 13, 21, 417 A.2d 611, 614-615 (1980) (counsel’s alleged inebriation during trial found not to constitute ineffectiveness where there was no indication on record that counsel’s drinking had affected the quality of his representation); Commonwealth v. Cofield, 310 Pa.Super. 356, 362, 456 A.2d 650, 653 (1983) (no conflict of interest where counsel convicted of mail fraud several months after defendant’s trial where defendant failed to offer any explanation as to why this constituted ineffective assistance of counsel).

In a case similar to the instant case, the Illinois Court of Appeals refused to adopt a mandatory rule presuming incompetence where counsel was faced with allegations of his own misconduct while he represented a criminal defendant. See: People v. Williams, 138 Ill.App.3d 1041, 93 Ill.Dec. 569, 487 N.E.2d 13 (1985). The defendant, having been found guilty of murder, contended that his attorney had provided ineffective assistance because he was under indictment on unrelated criminal charges and was preparing his own defense at the same time he was representing the defendant. The Illinois Court, after rejecting a per se rule of incompetence under such circumstances, held that the record indicated that counsel’s representation of the defendant had been constitutionally effective. See also: Commonwealth v. Shraiar, 397 Mass. 16, 489 N.E.2d 689 (1986); State v. Pych, 213 N.J.Super. 446, 517 A.2d 871 (1986).

We hold, therefore, that where, as here, defense counsel’s personal, legal troubles are unrelated to those of the client whom he is representing, there is no per se rule which commands that counsel be deemed constitutionally ineffective. In order to be entitled to relief from a conviction under such circumstances, the defendant must affirmatively show that his right to a fair trial was prejudiced by his counsel’s representation. In the instant case, neither appellant nor our own review has produced a basis for finding the quality of counsel’s advocacy impaired because he was under investigation by federal authorities in another, unrelated matter.

The judgment of sentence is affirmed.

      . The following issues were correctly decided and adequately discussed by the trial court.
      1. Were the Defendant’s alleged statements to the police constitutionally inadmissible because the Commonwealth failed to satisfy its burden of establishing that the Defendant knowingly and intelligently waived his Fifth Amendment Rights as explicated in Miranda v. Arizona?

      2. Did defense counsel’s failure to object to irrelevant and highly prejudicial testimony relating to bail deprive the Defendant of the effective assistance of counsel?
      3. Did the prosecutor’s comments in summation constitute prosecutorial misconduct?
      4. Did the Court err in failing to instruct the jury that mere presence or residence at the scene is insufficient to prove a conscious dominion over contraband?
      5. Did the Court err in its ruling on several evidentiary questions?
      6. Was the execution of the search warrant flawed by the failure of law enforcement officers to delay forced entry for a time sufficient to allow the occupants to surrender the premises peacefully?
      7. In several instances did the trial judge’s conduct transcend applicable standards?
      Additionally, McCloy asserts that trial counsel was ineffective for failing to request a jury instruction on mere presence at the scene of the crime. This issue is without merit. Our review discloses that the court’s charge adequately covered this area of the law. Counsel will not be deemed ineffective for failing to pursue a meritless course of action. See: Commonwealth v. Thomas, 372 Pa.Super. 349, 353, 539 A.2d 829, 831 (1988).


text:
    574 A.2d 91
    Deborah KRONZ v. John F. KRONZ. Appeal of FIRST SENECA BANK. FIRST SENECA BANK, Appellant, v. John F. KRONZ and Deborah J. Kronz, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1989.
    Filed April 16, 1990.

      Gregory M. Devine, Pittsburgh, for First Seneca, appellant.
    Ronald G. Backer, Pittsburgh, for Deborah Kronz, appellee.
    Before ROWLEY, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a court abuses its discretion by indefinitely enjoining the foreclosure of a defaulted mortgage against commercial real estate because of a pending divorce action between the husband and wife owner-mortgagors.

In July, 1986, Deborah and John Kronz, husband and wife, obtained a loan from First Seneca Bank in the amount of two hundred thousand ($200,000.00) dollars. The loan was secured by a first mortgage on commercial real estate known as the Jade Building, which the borrowers owned in Thornburg, Allegheny County. Shortly thereafter, the mortgagors separated, and, on September 11, 1986, Deborah filed an action for divorce. The mortgage then went into default, and when the mortgagors failed to maintain the building, First Seneca began foreclosure proceedings on the mortgage note and recovered a judgment against both husband and wife for two hundred thirty thousand ($230,-000.00) dollars. After the premises had been scheduled for sheriff’s sale in November, 1987, Deborah Kronz filed in the divorce action a petition alleging that the property had a value of six hundred fifty thousand ($650,000.00) dollars and requesting the court to enjoin the sale of the property. When the court granted the petition, the bank appealed. The trial court then requested and obtained a remand for further proceedings; whereupon it vacated the injunction and reissued the writ of execution. After the property had again been listed for sale, Deborah Kronz filed in the Civil Division a motion to suspend the reissued writ of execution. This petition was assigned to the Family Division, i.e., the divorce court, for disposition. Hearings were held, and an order was issued which enjoined First Seneca Bank from further executing on its judgment. It is this order which, on the bank’s appeal, is now before this Court for review.

Contrary to the opinion of the trial court and the argument advanced by the wife-appellee, the present appeal is properly before this Court for review. The injunction entered affects not only the rights of the parties in the divorce action but also the rights of the third party mortgagee. The court’s order has prevented the mortgagee from enforcing contractual rights expressly granted to it by the mortgage agreement and has imposed upon it obligations and risks not included in its agreement. Such an order is appealable under the rule announced in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) and adopted by the Pennsylvania Supreme Court in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). See: Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986). “Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545. The injunction entered in this case is separable from and collateral to the main action of divorce between the husband and wife mortgagors, and, because it deprives the mortgagee of contractual rights and imposes upon the mortgagee obligations and risks not contractually assumed, the rights involved are too important to be denied review. Finally, if review is postponed until the divorce action has been finalized by an order of distribution, the right of appellate review will have been lost.

The legislative history of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq., reveals the legislature’s concern for whether a matrimonial court should be permitted to interfere with the rights of creditors holding a security interest in marital property. Thus, in section 401(e), it excepted from “distributable marital property” any “property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the date of final separation.” To the extent that a secured creditor has acquired a bona fide interest in property owned by spouses, a matrimonial court does not have power to impair the creditor’s security.

That the legislature did not intend to confer upon matrimonial courts the power to impair the rights of secured creditors is also demonstrated by Section 401(c) of the Divorce Code. This section of the statute authorizes a divorce court to grant injunctive relief against either party or “against any. third person over whom. the court has jurisdiction and who is involved in or concerned with the disposition of the cause.” Secured creditors of husband and wife are not third persons who are “involved in or concerned with” the disposition of the divorce action. Although there may be situations in which an execution on real estate can properly be stayed by a court, the Divorce Code has not vested in matrimonial courts the power to alter the rights of creditors who are secured by liens on real estate owned by husband and wife as tenants by the entire-ties. A matrimonial court has not been authorized to alter or delay the rights of secured creditors merely to aid in effecting an equitable distribution of marital property between the spouses.

However, a court in which the execution proceedings are pending has an inherent power to stay the proceedings where it is necessary to protect the rights of the parties. Pa.R.C.P. 3121 authorizes a court to stay an execution upon the showing of a legal or equitable ground therefor. “The grant of a stay of execution is within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of that discretion.” In re Upset Sale, Tax Claim Bureau of Berks, 505 Pa. 327, 339, 479 A.2d 940, 946 (1984), citing Pennsylvania Company v. Scott, 329 Pa. 534, 549, 198 A. 115, 122 (1938); Augustine v. Augustine, 291 Pa. 15, 18, 139 A. 585, 586 (1927). A court, in exercising this power, should not stay an execution unless the facts warrant an exercise of judicial discretion. This entails a balancing of the rights of the debtor and creditor. Thus, a stay of execution was held proper upon a showing that an immediate enforcement of the judgment would result in unnecessary hardship to the judgment debt- or. Sinking Fund Commissioners of Philadelphia v. Philadelphia, 324 Pa. 129, 188 A. 314 (1936). See also: Foster v. Rubenstein, 383 Pa. 236, 118 A.2d 195 (1955) (execution stayed because of equity proceedings involving same parties and same subject matter). On the other hand, an execution against an undivided interest in real estate will not be stayed because of pending partition proceedings, North Wales Nat’l Bank v. Lapetina, 36 D. & C. 167 (Montg.1939), or because the judgment debtor has commenced a separate assumpsit action against the creditor. Guth, Inc. v. Bittner, 13 Leh.L.J. 97 (1928).

In the instant case, the trial court did not merely stay the bank’s execution proceedings. Rather, it enjoined the bank indefinitely from executing on the Jade Building or on any other property owned by Deborah and John Kronz to collect moneys for the repayment of which it had recovered a judgment. As a general rule, a court cannot properly impair the contractual rights of a secured creditor or impose upon it duties and obligations which it did not contract to assume. A court abuses its discretion if, by its order, it impairs the collateral security which a creditor has contracted for in a loan transaction. Here, husband and wife borrowed money and agreed that they would be jointly and severally liable for the repayment thereof. As security for their agreement to repay moneys borrowed, husband and wife created a mortgage interest in favor of the bank in jointly owned commercial real estate. The rights of the mortgagee bank in this real estate were contractual; they did not depend upon a continuing marriage of the mortgagors or upon the distribution of the real estate between them upon divorce.

The evidence is that the mortgaged premises have a market value of between $650,000.00 and $700,-000.00. The bank’s judgment is for only $230,000.00. There is, therefore, a substantial equity in the property on which the bank has issued execution. This equity is deserving of protection if the court can do so without impairing the substantive rights which have accrued to the secured creditor. Sinking Fund Commissioners of Philadelphia v. Philadelphia, supra. However, a court may not deprive the judgment holder of substantive rights, for to do so is a violation of due process. Id. 324 Pa. at 133-134, 188 A. at 317.

In the instant case, the trial court required that husband and wife owners enter an agreement with a real estate broker to list the property for sale. The trial court also directed that the rents from tenants of the building be assigned to the bank. However, the court’s order did not set a time limit within which the property was to be sold. The duration of the injunction was indefinite. The court’s order also did not fix a minimum price at which the property was to be sold. Either party was free to refuse an offer to buy. Thus, the court’s order created a substantial risk of prolonged delay. Such a delay would unquestionably affect the substantive rights of the execution creditor.

Although the court made provision for an assignment of the rents, it made no provision for management and maintenance services necessary for a commercial building. The court’s order did not fix responsibility for making repairs to the building, for making payment of taxes and municipal service charges, or for keeping the property protected by adequate insurance coverage. The evidence was that neither husband nor wife had been diligent in maintaining the property or in providing services to the tenants. Without such provisions, as the mortgagee cogently argues, its substantive rights have been adversely affected by the court’s order and the resulting delay in enforcing its judgment. We are constrained to conclude, therefore, that an assignment of the rents was inadequate security for the protection of the mortgagee while it was enjoined from pursuing the remedies guaranteed by its agreement with husband and wife. Because the trial court impaired the mortgagee’s substantive rights without providing adequate interim security, its order must be deemed an abuse of discretion.

To summarize, the court set no time limit for its order enjoining the mortgagee from enforcing its contractual rights. There is no guarantee that the real estate will be sold in the near future at a price satisfactory to husband and wife. Although there are other marital assets available to pay or secure the mortgagee’s judgment, the court did not require either payment or security. The effect of the court’s order is to alter the substantive rights of the mortgagee and to impose upon the mortgagee the risk of delay inherent in a divorce action whose movement the mortgagee is powerless to control.

Neither husband nor wife will be helpless in the event a sheriff’s sale of the real estate is allowed to proceed. Either marital party can appear at the sale and, by appropriate bidding, insure that an adequate price is realized. Wife’s fear that her husband will be able to purchase the premises for less than market value is purely speculative and, in any event, can be protected against by means other than enjoining the mortgagee from a timely enforcement of its judgment. The failed marriage is alone an inadequate basis for depriving the mortgagee of its contractual and legal rights to receive repayment of the loan after a default has occurred and where, as here, there is no likelihood that the default will be cured by the mortgagors.

Under these circumstances, we are constrained to conclude that the order of the trial court which enjoined execution on the mortgaged real estate was an abuse of discretion.

The order of the trial court is vacated, and the case is remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.


author: CERCONE, Judge:

text:
    574 A.2d 96
    COMMONWEALTH of Pennsylvania v. Joseph VIDMOSKO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed May 2, 1990.

      Joseph A. O’Brien, Scranton, for appellant.
    Michael R. Goffer, Asst. Dist. Atty., Scranton, for Com., appellee.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered after a jury found appellant guilty of six counts of involuntary deviate sexual intercourse and three counts of criminal conspiracy. We affirm.

A criminal complaint was issued on September 16, 1985 charging appellant with four counts of involuntary deviate sexual intercourse, four counts of indecent assault and one count of corruption of minors in connection with acts performed on a six year old girl. The criminal complaint also charged appellant with two counts of involuntary deviate sexual intercourse, two counts of indecent assault, and one count of corruption of minors for acts performed on the little girl’s five year old brother. An information was issued on April 4, 1986 by the Lackawanna County District Attorney’s Office charging appellant with criminal conspiracy as well as with the crimes set forth in the criminal complaint. Certain charges, including the counts of indecent assault and corruption of minors were later dismissed by the Commonwealth because the statutory limitations period had elapsed.

Appellant initially pled guilty to criminal conspiracy, but was subsequently granted leave to withdraw his plea. An omnibus pre-trial motion was filed on September 6, 1987. In September of 1988 a jury trial commenced before the Honorable James Dwyer of the Court of Common Pleas of Erie County, specially presiding in Lackawanna County to hear this matter. The jury found appellant guilty on all the counts with which he remained charged, i.e., six (6) counts of involuntary deviate sexual intercourse and three (3) counts of criminal conspiracy. Appellant’s timely filed post trial motions were denied on April 13, 1989 by the Honorable Carlon M. O’Malley of the Court of Common Pleas of Lackawanna County. Judge O’Malley sentenced appellant on July 19, 1989 to serve an aggregate term of twelve (12) to twenty-four (24) years in prison. The instant timely appeal followed in which appellant raises two issues for our consideration: (1) whether the trial court erred in denying appellant’s request for a charge regarding the statute of limitations; and (2) whether the trial court erred in concluding that the prejudicial comments of certain Commonwealth witnesses did not require a new trial.

The first argument raised by appellant is that the trial judge should have charged the jury regarding the applicable statutory limitations period on the crimes for which he was tried. Appellant contends that the testimony of the child victims was inherently contradictory regarding the timing of the events underlying the criminal charges. The gravamen of appellant’s complaint is that, as a result on the inconsistencies in the children’s testimony, the jury could have concluded that the questioned events occurred in 1979 and 1980 rather .than in 1982. If the jury had determined that these events transpired in 1979 and 1980, the proper result would have been to discharge appellant as prosecution would have been time barred.

Appellant has waived his first argument by failing to raise this question before trial. The proper method for raising a statute of limitations defense is to file a pre-trial omnibus motion seeking a dismissal of charges. Commonwealth v. Darush, 501 Pa. 15, 20 n. 4, 459 A.2d 727, 730 n. 4 (1983). Appellant’s pre-trial omnibus motion included no mention of the impact of the relevant limitations periods on the instant case.

Even assuming, arguendo, that appellant had preserved this claim, we could still grant him no relief. First, appellant’s argument overlooks the facts that he signed a confession to the criminal activity with which he was charged and that this confession was admitted against him at trial. N.T. 9/20/88 at 33. Appellant’s confession indicates that he perpetrated sexual acts upon the child victims during the spring and summer of 1982. Id. at 38-41, 57-58. Second, when testifying on his own behalf at trial, appellant indicated that he did not meet the children until after he moved to the same townhouse complex in which they lived. Id. at 164. Appellant also stated that he did not move to this townhou'se complex until “late 1980.” Id. at 161. Thus, appellant’s own testimony indicates that he did not know the child victims until a point in time within five years of the date on which the criminal complaint was filed against him. Finally, our careful review of the record has convinced us that appellant is simply incorrect in contending that the victim’s testimony was inherently contradictory.

Although the Commonwealth is required to establish the date of alleged offenses with reasonable certainty, young children are not required to testify regarding the exact dates of the sexual assaults they have endured. See Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988), allocatur denied, 523 Pa. 641, 565 A.2d 1165 (1989). The child victims who testified instantly were only five and six years of age at the time they were abused by appellant. The record reveals that on cross-examination, the young girl became confused by the barrage of figures and dates thrown at her by counsel for appellant. N.T. 9/19/88 at 130-159. However, the child never wavered in her testimony that the incidents involving appellant occurred when she lived in a foster home and visited her parents on a regular basis. Id. at 130-159, 164-166, 168-171. In a proper effort to clarify an apparent contradiction in the child’s testimony, the trial judge asked her a brief series of questions which showed that the girl’s parental visits occurred in 1982. Id. at 170. See Commonwealth v. Roldan, 520 Pa. 616, 554 A.2d 508 (No. 13 E.D. Appeal Dkt.1989, filed March 28, 1990) (trial judge may clarify a disputed point so long as he does not engage in lengthy or partisan examination of the witness). Thus, the girl’s testimony clearly established that the offenses charged against appellant occurred after September 16, 1980. Despite appellant’s assertions to the contrary, the boy’s testimony corroborated the time frame established by his sister’s statements. Id. at 173-210. As no evidence was presented to the jury from which they could have concluded that the statute of limitations had run, the trial judge correctly refrained from charging in this regard. Commonwealth v. Robinson, 496 Pa. 421, 437 A.2d 945 (1981).

Appellant’s second claim is that the trial court erred on numerous occasions in allowing several Commonwealth witnesses to make highly prejudicial comments. Specifically, appellant maintains that Paul Walker, Walter Carlson and Mary Curran were permitted to exploit their status as authorities on child abuse to enhance the credibility of the child witnesses. The gist of appellant’s complaint is that Walker, Carlson and Curran were permitted to give opinions on the ultimate factual question of appellant’s guilt, which should have been resolved by the jury.

Appellant cites Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974) for the proposition that it was improper for the witnesses to inform the jury that they had determined the children were telling the truth. We agree with appellant that in Russell our supreme court held that neither a district attorney nor a former district attorney may express his or her personal beliefs on issues of credibility which are within the sole province of the jury. We are mindful of our supreme court’s directive that the admissibility of expert testimony in child abuse cases must be evaluated cautiously in order to prevent encroachment upon the jury’s function by the unfair enhancement of a child victim’s credibility. See Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). See also Commonwealth v. Gibbons, 383 Pa.Super. 297, 556 A.2d 915 (1989) allocatur denied, 523 Pa. 647, 567 A.2d 651 (1989) (child abuse expert may not usurp function of jury); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (same). In the instant case, however, the record discloses no instance where Mr. Walker, Trooper Carlson, or Ms. Curran expressed their personal opinions on either the factual question of appellant’s guilt or on the truthfulness of the children’s testimony-

Mr. Walker, a former assistant district attorney, explained the nature of his involvement with the instant case and the procedures he followed to evaluate the accusations made by the children. N.T. 9/19/88 at 54-65. On direct examination, Mr. Walker indicated that extensive verification procedures were required by the Lackawanna County District Attorney’s Office before bringing felony charges against an accused. Id. at 63. During cross-examination, the following exchange took place:

Q. (by defense counsel): Now, is there anything in any of these statements that these children gave to you that indicate [sic] the date that these alleged offenses may have occurred?
A. (by Mr. Walker): There is nothing that would say that these offense occurred on a specific date. There are a number of factors which we took into account in trying to aarrive [sic] at a time period during which these offenses would have occurred.
Q. Now, there are dates set forth in the criminal information. Were they dates you decided on or dates that the children told you?
A. Well, they are dates that the children directed us to, but ultimately I believe that Trooper Carlson and I made the decision as to the dates as close as possible on which these events occurred.
Q. So the children never told you the dates?
A. Did the children tell us specific dates, no. The children didn’t say these events occurred on March 4th, 1982. What the children did is to give us information from which we could derive a time period during which these events occurred.
Q. And did you verify any of that information?
A. If you are asking me to tax my memory, I believe we did, yes. And if you would like me to explain that, I will.
(by defense counsel): That is all I have.

Id. at 73-75 (emphasis added). On re-direct, Mr. Walker explained the procedures employed to verify the information given to him by the children. Id. at 76-82. When questioned as to whether the children’s accusations were congruous, Mr. Walker responded that the answers of each child were “consistent” with the statements made by the other child. Id. at 81. We agree with the lower court’s determination that Mr. Walker’s testimony was merely indicative of the fact that a meticulous investigation designed to safeguard appellant’s rights had been conducted by the Lackawanna Coimty District Attorney’s Office. We see no indication that Mr. Walker was permitted to usurp the jury’s function in any way.

We have carefully reviewed the parties’ briefs and the record on appeal. Appellant’s contentions with regard to the testimony of Trooper Carlson and Ms. Curran are simply not substantiated by the record. In response to allowable questions by both the prosecutor and counsel for the defense, Carlson and Curran properly related the procedures they followed in determining that the instant case should be prosecuted. N.T. 9/20/88 at 2-112, 113-138. Their testimony was neither “highly prejudicial personal opinion” nor did it improperly intrude upon the jury’s function of evaluating the credibility of the victims.

The record reveals that the trial judge explicitly instructed the jury regarding their role as fact-finder and their responsibility to weigh and determine the credibility of the testimony presented to them.

So you have to decide on each case that is brought here whether or not the Commonwealth has met its burden.
Now your next question is, how do you determine what happened. You’ve heard different stories from the witness stand. You’ve got to determine what witnesses have been truthful, what testimony has been truthful. That is referred to as the credibility of the testimony or the witnesses. And it is solely your function, you ’re the only ones that can determine who has been truthful and who has not been.

N.T. 9/21/88 at 127-128 (emphasis added). Later, in the context of instructing the jury regarding factors to be considered in finding appellant guilty beyond a reasonable doubt, the trial judge also stated:

Another rule of law that pertains to the credibility of a witness is this: If you determine — and again, this is solely your function —if you determine that any witness has told you an untruth, has lied to you about any serious charge in this case or any serious point, you have a right to disregard the entire testimony of that witness. You don’t have to disregard it but you can.

Id. at 131-132 (emphasis added). Our review of the record has convinced us that not only were the prosecution witnesses never permitted to arrogate the functions of the jury, but that the trial court’s instructions correctly emphasised and explained their proper role to the jury. We therefore affirm the action of the lower court on this issue. Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3123.

      . Id. § 3126.

      . Id. § 6301.

      . Id. § 903(a)(1).

      . Appellant argues that the crimes charged in the instant case are governed by a five year statute of limitations. See 42 Pa.C.S.A. § 5552(b). As the criminal complaint was filed against appellant on September 16, 1985, acts perpetrated prior to September 16, 1980 would have occurred beyond the limitations period.

      . The child victims in this case were sexually abused over a lengthy period of time by many adults, including their mother and father. Unquestionably, the children testified to events that occurred earlier than 1982. This does not, however, change the fact that their testimony clearly indicates that appellant abused them during 1982.