source: Caselaw Access Project

author: WIEAND, Judge: TAMILIA, Judge,

license: Public Domain

text:
    543 A.2d 1133
    STOP 35, INC. v. David HAINES. Appeal of Della K. HAINES.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1987.
    Filed May 13, 1988.
    Reargument Denied July 8, 1988.

      Lester H. Zimmerman, Jr., Lewistown, for appellant.
    Andrew L. Winder, Mifflintown, for Stop 35, appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge:

In response to a petition in aid of execution the trial court entered an order directing the former wife of a judgment debtor to pay the judgment from proceeds derived from the sale of real estate owned by the wife. The wife appealed. We reverse.

On August 20, 1982, Stop 35, Inc. confessed judgment on a note which had been executed by David Haines in the principal amount of $2,249.93. On that date, David Haines and his wife, Della, were owners by the entireties of real estate situated in Fayette Township, Juniata County. Haines and his wife, however, had separated in January, 1982 and by August, 1982, a divorce action was pending in the Court of Common Pleas of Juniata County. Because of the separation and impending divorce, Haines and his wife, on May 6, 1982, had executed a homemade agreement which provided, inter alia, that

“When ever property is sold it is agreed that after the house is paid off balance will be divided equally.”

Whether the agreement regarding this real estate was subsequently re-negotiated and changed is not clear, although there is testimony to that effect which the trial court appears to have accepted as credible. In any event, by deed dated December 26, 1984 and recorded on February 14, 1985, the jointly owned real estate was conveyed to Della Haines alone. The consideration recited in the deed was one ($1.00) dollar. A divorce decree was entered on the following day, February 15, 1985. On March 7, 1985, Della Haines, unmarried, conveyed the real estate for a consideration of $37,500.00 to the parents of her former husband. At settlement, the sum of $2,254.93 (the amount of Stop 35’s judgment) was withheld and placed in escrow pending a determination of Stop 35’s right to recover the judgment which it held against David Haines from the real estate sold by his former wife.

On March 8, 1985, Stop 35 filed a petition in aid of execution, and the trial court issued a rule against Della Haines, David Haines, and the escrow holder to show cause why Stop 35’s judgment should not be paid from the moneys held in escrow. The petition contains averments (1)

May 6, 1982

1. Legal custody of both children will go to my wife.

2. Visitation rights are unlimited-they can be seen when ever husband is in off the road and for as long as he is in.

3. Both parties agree that when filing income tax they will each use one child as a deduction.

4. All contents of the house will stay with my wife.

5. When ever property is sold it is agreed that after the house is paid off balance will be divided equally.

6. Whenever tractor-trailer is sold loan for the truck will be paid off releasing the house as collateral.

7. Husband will help with any major repairs of the house-example-furnace, roof etc.

8. Child support—100.00 per week.

9. A loan will be taken out to pay off all standing bills and it is agreed that both parties will pay an equal share until the loan is paid off.

/s/ David Haines

that the judgment constituted a lien against David Haines’s interest in the real estate which was not discharged by the conveyance to his wife; and (2) that the deed to Della Haines was fraudulent because it was without adequate consideration. Following an evidentiary hearing, at which David Haines did not appear but which was defended by Della Haines, the trial court directed the escrow holder to deliver the moneys being held to Stop 35 in satisfaction of the judgment which it held against David Haines.

Stop 35’s judgment against David Haines did not constitute a lien against the real estate which he and his wife owned as tenants by the entireties. A husband and wife do not own separate interests in entireties property which can be reached by their individual creditors. Kauffman v. Stenger, 151 Pa.Super. 313, 314, 30 A.2d 239, 240 (1943). See also: Patwardhan v. Brabant, 294 Pa.Super. 129, 439 A.2d 784 (1982). “Because a tenancy by the entireties is grounded in the unity of the marital relationship, it can be severed only in certain limited circumstances.” Clingerman v. Sadowski, 513 Pa. 179, 183-184, 519 A.2d 378, 381 (1986). See also: 18 P.L.E. Husband and Wife § 12. In.addition to death of one of the co-tenants, divorce, or a joint conveyance, the parties can sever the tenancy by the entireties by agreement, express or implied. In the instant case, the trial court held that the entireties estate had been severed on May 6, 1982, when the parties agreed that if the real estate were sold, the net proceeds from the sale would be divided equally. Our review of the law persuades us that the trial court’s conclusion was erroneous.

Initially, it may be observed that the facts of the instant case do not lie within the holdings of those decisions which have determined that a tenancy by the entireties may be severed by implied agreement of the parties. There was not in this case a misappropriation of entireties property by one spouse and a request for partition by the other spouse. See, e.g.: Clingerman v. Sadowski, supra; In re Brose’s Estate, 416 Pa. 386, 206 A.2d 301 (1965); Berhalter v. Berhalter, 315 Pa. 225, 173 A. 172 (1934). With respect to express agreements to sever a tenancy by the entireties, the Supreme Court said, in In re Prichard, 359 Pa. 315, 59 A.2d 101 (1948), the following:

A tenancy by the entireties may be terminated by agreement of the parties. In Berhalter v. Berhalter, 315 Pa. 225, 228, 173 A. 172, 173, it was said: “It has long been held that deeds of grant will operate to extinguish the right of survivorship and destroy a joint tenancy. Such a result is predicated on an agreement, and an estate by entirety with the incidents of survivorship may always be destroyed by agreement of the parties.”

Id., 359 Pa. at 318, 59 A.2d at 102.

In Kern v. Finnegan, 192 Pa.Super. 611, 162 A.2d 93 (1960), this Court considered an agreement between a husband and wife which purported to sever a tenancy by the entireties. The facts were as follows:

On March 18, 1957, plaintiff Walter H. Kern, then 78 years of age, together with his wife who was afflicted with cancer, entered into an Agreement which provided in paragraph 2 thereof:
“Premises 3045 North Lawrence Street, Philadelphia, Pennsylvania, from this day henceforth, shall no longer be held by Walter H. Kern and Florence G. Kern, his wife, as tenants by the entirety, but rather each shall own an undivided one-half interest as tenants in common, without the right of survivorship, of the real estate in question to the same force and legal effect as though this had been done by Deed duly executed by the parties and recorded.”
Said Agreement further provided in the event of the death of Florence G. Kern, the undivided one-half interest established by the Agreement should become the sole and separate property of Anna Finnegan, guardian of the person and property of Laura Worrell, for the personal care, use and benefit of the said Laura Worrell.

Id. 162 A.2d at 94-95. The Court held that the agreement was ineffective to sever the tenancy by the entireties. The Court adopted the reasoning of the trial court which provided as follows:

We do not believe that there is any authority and defendants have cited none to support the position that husband and wife by written declaration of the nature here involved can convert a tenancy by the entireties to one as tenants in common with the same force and legal effect as though it had been done by Deed executed by the parties and recorded.
It is obvious that the effect on the title to this property by the recording of this Agreement would be chaotic. Certainly, grantor and grantee cannot merely by their own declaration effectuate the recording of a Deed affecting title to property.
In view of the foregoing, we are constrained to hold that the instrument here involved cannot be read to convey a fee simple interest as tenant in common of an undivided one-half interest in the property to either Anna Finnegan or Laura Worrell.

Id. 162 A.2d at 95-96. Similarly, in the instant case, the agreement relied upon by the creditor was not a deed, could not have been recorded, and was ineffective to sever the tenancy by the entireties. It was nothing more than an agreement, modifiable by mutual consent, to divide equally the proceeds in the event that at sometime in the future the property were sold. A careful examination of the agreement does not disclose a present intent to sever the entire-ties estate in the marital home. The agreement was nothing more than an expression of intention to divide the net proceeds if and when the real estate was sold for an adequate price. The testimony at the evidentiary hearing was that no affirmative efforts had been made to sell the real estate before it was conveyed to Della Haines. Thus, there had been no severance of the tenancy by the entireties prior to the time when the home was conveyed to Della Haines. It was only then that a severance occurred. See: Runco v. Ostroski, 361 Pa. 593, 65 A.2d 399 (1949). Thereafter, title was vested in Della Haines. At no time did David Haines have a separate interest, legal or equitable, in the marital home to which the lien of Stop 35’s judgment attached.

The conveyance to Della Haines was not fraudulent merely because the consideration therefor was nominal. At no time did David Haines have a separate interest in the real estate which was subject to the lien of Stop 35’s judgment. Moreover, the creditor had no claim against the entireties property. It had nothing more than a potential lien against the property in the event that David Haines should survive his wife. Meanwhile, husband and wife could convey the property free from any lien of the Stop 35 judgment. When the property was conveyed, therefore, Stop 35 had no basis for complaining, for it had no interest in and could acquire no interest in the real estate while husband and wife were alive and remained married.

A similar situation arose in Wylie v. Zimmer, 98 F.Supp. 298 (E.D.Pa.1951). The court summarized the law as follows:

When property in Pennsylvania is owned by husband and wife, title is held as tenants by entireties. This estate is separate and distinct from the estates of either spouse and cannot be reached by either spouse’s creditors. One of the incidents of tenancy by entireties is the right of survivorship. A judgment creditor of one spouse has a potential lien against property held by entireties, which lien is based upon that spouse’s contingent expectancy to survive and to become the sole owner of the property. However, the creditor has no right or claim to that property during the lifetime of the other spouse and has no standing to complain of a conveyance which prevents the property from falling into his grasp.

Id. at 299. See also: C.I.T. Corp. v. Flint, 333 Pa. 350, 5 A.2d 126 (1939). The Supreme Court of Pennsylvania also has said that, even despite an actual intent by a husband to defraud his creditor,

[t]he fact remains, however, that [the husband] was mistaken in his assumption that his entireties property jointly held with his wife could have been reached by a creditor of him alone; property owned by tenants by the entireties is not subject to the debts of either spouse, and they may alien it without infringing upon the rights of their individual creditors.

Stauffer v. Stauffer, 465 Pa. 558, 576, 351 A.2d 236, 245 (1976). The Court in Stauffer then concluded that “[s]ince [the husband’s creditor] could not have reached the property before the conveyance, it follows that the conveyance itself could not have been fraudulent as to [the creditor].” Id. at 576, 351 A.2d at 245 (footnote omitted). See also: C.I.T. Corp. v. Flint, supra 333 Pa. at 356, 5 A.2d at 129 (“It is not a fraud in contemplation of law to deprive one of that to which he has no right.”); Murphey v. C.I.T. Corp., 347 Pa. 591, 33 A.2d 16 (1943).

Finally, it is clear that Stop 35’s judgment did not constitute a lien against the rights, if any, conferred upon David Haines by the agreement executed between Haines and his wife on May 6, 1982. A judgment is a lien on real property owned by the judgment debtor. It is not a lien upon personal property or choses in action held by the judgment debtor. See: 11 Std.Pa.Prac.2d § 70:17; 20 P.L.E. Judgment § 369. See also: Sheaffer v. Baeringer, 346 Pa. 32, 29 A.2d 697 (1943) (a lease for years is personal rather than real property and, thus, is not subject to a lien of a judgment); Rush v. First National Bank of Confluence, 324 Pa. 285, 188 A. 164 (1936) (the lien of a judgment attaches to personalty from the date of levy); Keystone Coal Co. v. Williams, 216 Pa. 217, 65 A. 407 (1907) (personal property cannot be subjected to lien except by execution). Although personal property and choses in action can be reached by execution proceedings, there were no execution proceedings on the judgment held by Stop 35 against David Haines. Moreover, the evidence did not show and the trial court did not find that David Haines had a right to receive any part of the price paid for the marital home to his former wife. The agreement of May 6, 1982 was superseded by the deed of December 26, 1984, which vested title solely in Della Haines. There is no basis in this record, therefore, to find that David Haines is entitled to any portion of the purchase price for the home owned and sold by Della Haines.

For these reasons we are constrained to conclude that the trial court erred when it directed that Della Haines pay the judgment which was held by Stop 35 against David Haines from proceeds of the sale of her real estate.

The order of the trial court is reversed. The moneys held in escrow shall be paid to the appellant, Della Haines.

JUDGMENT

ON CONSIDERATION WHEREOF, it is hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of Juniata County is reversed. The moneys held in escrow shall be paid to the appellant, Della Haines.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting statement:

I respectfully dissent and would affirm the judgment of the trial court. The fact that the husband owed the wife in excess of $25,000.00 and yet a conveyance of the wife’s share of the marital property was made for $1.00, and the husband was thus rendered insolvent, is sufficient to establish a fraudulent conveyance under the Fraudulent Conveyance Act, 39 P.S. § 354. I believe the trial court was correct in finding a fraudulent conveyance and in awarding a judgment of $2,250 out of the proceeds of the sale of the property by the wife to the .parents of the husband.

      . The complete agreement was as follows:

      . The procedure followed by Stop 35 was improper. Pa.R.C.P. 3118, which provides for supplementary relief in aid of execution and pursuant to which the petition in the instant case was filed, is not to be employed to adjudicate the title to property or to set aside fraudulent conveyances. See: Greater Valley Terminal Corp. v. Goodman, 415 Pa. 1, 202 A.2d 89 (1964). Only property to which title is clearly in the judgment debtor can be made subject to Rule 3118’s relief in aid of execution. Because the improper procedure was not objected to preliminarily in the trial court, however, the trial court determined the substantive rights of the parties. We, too, will consider the merits.


author: HOFFMAN, Judge:

text:
    543 A.2d 1138
    Pamela MUHAMMAD, Administratrix of the Estate of Nazir Muhammad and Abdullah Muhammad, Appellants, v. STRASSBURGER, McKENNA, MESSER, SHILOBOD AND GUTNICK, A Law Partnership, Howard Messer and James Thomas, Jr.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1987.
    Filed May 13, 1988.
    Reargument Denied July 8, 1988.

      Kenneth W. Behrend, Pittsburgh, for appellants.
    James R. Schadel, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below sustaining a demurrer and entering judgment in favor of appellees in a legal malpractice action. Appellants contend that the trial court erred in concluding that their cause of action is barred by this Court’s prior decision in Muhammad v. Children’s Hosp. of Pittsburgh, 337 Pa.Superior Ct. 635, 487 A.2d 443 (1984). For the reasons that follow, we reverse the order below and remand the case for proceedings consistent with this opinion.

The relevant procedural history, as summarized by the trial court, is as follows:

This matter is before the court on the third preliminary objections of [appellees] to [appellants’] complaint and on [appellants’] petition for change of venue in a legal malpractice action.
Background
[Appellants] are the parents of Nazir Muhammad, who was bom on November 7, 1977 and died shortly thereafter.
In November of 1977, an incomplete circumcision was performed on Nazir Muhammad at Magee-Womens Hospital. On December 16, 1977, Nazir Muhammad was operated upon again to complete the removal of his foreskin. As a consequence of the preparation for general anesthesia, he suffered pulmonary edema and died three days later in the Children’s Hospital at Pittsburgh, Pennsylvania.
In March, 1978 [appellants] employed [appellee] James Thomas, Jr., [Esq.] to represent them. In October of the same year, [appellants] retained and employed [appellee] law firm and the individual member of that firm to prosecute [appellants’] claim.
On November 18, 1978, [appellees] filed a notice of Complaint with the Medical Arbitration Board against Children’s Hospital, and Stewart E. Price, Jr. (the urologist performing the second circumcision) and Helen West-man (the anesthesiologist attending the decedent). In April of 1979, an action was filed against the same defendants in the Court of Common Pleas of Allegheny County.
Due to [appellees’] representation and advice to [appellants], [appellants] agreed as a result of a pretrial conciliation before Judge Wekselman, to accept a settlement offer in the amount of $26,500.00.
[Appellants] thereafter became dissatisfied with the settlement to which they had agreed and attempted to have the Court prevent enforcement of the settlement. The original complaint states that the Court by Order entered the 23rd day of April, 1982 confirmed the settlement and that the Superior Court of Pennsylvania [affirmed the order] on November 23, 1984.
[Appellants] filed the action presently before the Court by praecipe on April 19, 1984. The complaint in this matter was filed on or about April 2, 1986.

Trial Court Opinion at 1-2 (footnote omitted).

The complaint set forth eight counts of allegedly wrongful conduct, deriving from appellees’ prior legal representation of appellants. Appellees then raised preliminary objections in the nature of a demurrer to all counts of appellants’ complaint. The trial court noted that the issue presented was “whether [appellants’] cause of action is barred by the prior opinion of the Superior Court in this matter.” Id. at 6. The court, without discussion, then entered an order sustaining appellees’ demurrer and entering judgment in favor of appellees. This appeal followed.

A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hosp. of Phila., 439 Pa. 501, 267 A.2d 867 (1970). Therefore, if any theory of law will support the claim raised by the [complaint], a dismissal is improper____
For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, the averments [in the complaint], except to the extent that they constitute conclusions of law, must be taken as true, Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978)....

Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). See also Aetna Electroplating Co. v. Jenkins, 335 Pa.Superior Ct. 283, 285, 484 A.2d 134, 135 (1984). When, as here, the complaint alleges a cause of action based upon legal malpractice, three essential elements must be established:

1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.

Schenkel v. Monheit, 266 Pa.Superior Ct. 396, 399, 405 A.2d 493, 494 (1979) (quoting R. Mallen & V. Levit, Legal Malpractice 123 (1977)) (footnote omitted). See also ei bon ee baya ghananee v. Black, 350 Pa.Superior Ct. 134, 140, 504 A.2d 281, 284 (1986). With these principles in mind, we consider the facts presented below.

The trial court did not state the reasoning behind its conclusion that appellants’ cause of action is barred by our prior decision. Following a review of the brief filed in support of appellees’ preliminary objections, and the parties’ briefs on appeal, however, we can surmise that the court’s decision was based on the following analysis:

1. Appellants, to recover in a legal malpractice action, had to show that they suffered pecuniary damages as a proximate result of appellees’ prior representation;
2. To prove those damages, appellants had to show that the settlement of their previous claim, obtained through the services of appellees, was inadequate;
3. The question of the adequacy of the prior settlement was previously litigated, and that decision was affirmed by this Court in Muhammad v. Children’s Hosp. of Pittsburgh, supra; and
4. Because the adequacy of the prior settlement already was litigated, appellants are barred from bringing this action under
a. the doctrine of the law of the case, and/or
b. the doctrine of collateral estoppel.

See Brief in Support of [appellees’] Third Preliminary Objections at 4—11; Brief for Appellants at 8; Brief for Appellees at 6.

Appellants contend that both the “law of the case” and “collateral estoppel” doctrines are inapplicable to the case at bar, and thus the trial court erred in sustaining appellees’ demurrer and entering judgment in favor of appellees. We agree that the two doctrines are inapplicable.

I. LAW OF THE CASE

The “law of the case” doctrine applies only if, inter alia, the parties on the two appeals are the same. “It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal.” Commonwealth v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427 (1968) (citations omitted) (emphasis supplied). See also Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394, 100 A.2d 595, 598 (1953) (“[t]he doctrine of ‘the law of the case’ is that, when an appellate court has considered and decided a question submitted to it upon appeal, it will not, upon a subsequent appeal on another phase of the same case, reverse its previous ruling even though convinced that it was erroneous____”) (citation omitted) (emphasis supplied); Daniels v. State Farm Mut. Auto Ins. Co., 305 Pa.Superior Ct. 352, 356, 451 A.2d 684, 686 (1982) (same); Albright v. Wella Corp., 240 Pa.Superior Ct. 563, 567, 359 A.2d 460, 463 (1976) (same). Accord 21 C.J.S. Courts § 195a, at 330 (1940) (“ ‘Law of the case’ ... means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case____”) (emphasis supplied).

Here, although appellants, the Muhammads, were parties in the prior appeal, it is uncontested that appellees were not. Thus, for “law of the case” purposes, this appeal does not involve the same “case” as the prior appeal. Accordingly, we conclude that the law of the case doctrine does not bar appellants’ action, and the trial court order is not affirmable on this basis.

II. COLLATERAL ESTOPPEL

“The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Superior Ct. 225, 236, 464 A.2d 1313, 1318 (1983) (citations omitted). For the doctrine of collateral estoppel to apply, it must appear that

1. the fact or facts at issue in both instances were identical;
2. these facts were essential to the first judgment;
3. the parties must have had an opportunity to ‘actually litigate’ the issue; and

4. the facts were actually litigated in the first cause. Schubach v. Silver, 461 Pa. 366, 377, 379, 336 A.2d 328, 334, 334-35 (1975). See also Matson v. Housing Auth. of Pittsburgh, 326 Pa.Superior Ct. 109, 112-13, 473 A.2d 632, 634 (1984); Long v. Long, 306 Pa.Superior Ct. 142, 144, 452 A.2d 255, 256 (1982); Lebeau v. Lebeau, 258 Pa.Superior Ct. 519, 525-26, 393 A.2d 480, 482-83 (1978); Restatement (Second) Judgments § 27; Restatement Judgments § 68.

Here, appellees argue that the issue common to both this appeal and the prior appeal is the question of the adequacy of the settlement of appellants’ suit against Children’s Hospital. Appellees maintain that this factual question has already been litigated adversely to appellants in the prior appeal. In contrast, appellants argue, inter alia, that the only factual issue presented and resolved in the former action was whether appellants had authorized appellees to settle their claim. Appellants submit that the observations made both by the trial court and this Court in the prior appeal regarding the adequacy of the settlement were not essential to the disposition of that matter, and thus cannot preclude the litigation of the issue in this action. We agree.

In determining whether the question of the adequacy of the settlement was already decided in the prior appeal, we necessarily must examine the relevant portions of the record in the prior case. See Matson v. Housing Auth. of Pittsburgh, supra. The certified record in the instant case contains both the notes of testimony from the hearing held to determine whether the settlement should be enforced, as well as the trial court’s order and opinion on the issue, and our Memorandum affirming the trial court. See Brief in Support of Third Preliminary Objections, Exhibits “A” & “B”. Compare Matson v. Housing Auth. of Pittsburgh, supra.

A review of these documents reveals that appellants initially settled their medical malpractice action against Children’s Hospital and the two individual defendants. The settlement was reached following a pre-trial conference. Thereafter, the defendant hospital learned that appellants were not satisfied with the settlement, so it petitioned the trial court for a rule to show cause why the settlement should not be enforced. The court then held an evidentiary hearing, at which Pamela Muhammad, one of the appellants, testified. After the hearing, the trial court issued an order making the rule absolute, and authorized the defendants to pay into court the settlement sum. Appellants filed an appeal with this Court, and we affirmed in an unreported Memorandum.

The issue presented at the hearing held on the rule to show cause was whether counsel [appellees herein] were authorized to enter into the settlement with Children’s Hospital. See N.T. April 23, 1982 at R-2. The court concluded that Pamela Muhammad had indeed authorized the settlement, noting that,

It’s the Court’s conclusion from the testimony and from the in chambers discussion in which Mr. Messer indicated that he was of the belief that he was authorized to enter into the settlement that has been corroborated by Mrs. Muhammad who indicates that she did indeed authorize a settlement even at $23,000 if counsel felt that were the proper settlement. The only difficulty is that she has changed her mind since that time and now believes the settlement to be inadequate. Having authorized the settlement, she is not privileged to change her mind at this point. Had counsel not been authorized to enter into the settlement that, of course, would have been an entirely different matter, but the proper authority having been granted we simply cannot permit these cases to bounce around back and forth. It is the Court’s view, as it was then, that the settlement agreement is a proper, just and equitable settlement in the circumstances, or the Court would not have suggested it____

Id. at R-7. The court reiterated this conclusion in its opinion:

[Mrs. Muhammad] testified that she had authorized [her] counsel ... to enter into the settlement and that she had since had. a change of mind. Her change of mind does not alter the fact that she had authorized the settlement and that, in the view of the Court, the settlement was indeed an advantageous one—given the apparent difficult liability and damages questions in the case.

Trial Court Opinion May 21, 1982 at 1.

Similarly, the relevant issue presented to, and decided by, this Court on appeal, was framed by the Superior Court panel as follows:

Appellants suggest four reasons why this Court should set aside the settlement agreement and allow the appellants to proceed to a trial on the merits____ [Fourth], appellants suggest that Mrs. Muhammad never expressly authorized their previous attorney ... to settle their claim.

Muhammad v. Children’s Hosp., 337 Pa.Superior Ct. 635, 487 A.2d 443 (1984), unpublished Memorandum at 2-3. Our Court’s entire discussion of this issue was as follows,

Appellants finally suggest that Mrs. Muhammad did not give her express consent to Mr. Messer to settle the appellants’ claim. The trial court found that Mr. Messer did have this authority, and that Mrs. Muhammad had merely changed her mind after the settlement agreement had been concluded. Trial Court Opinion at 1.
Of course, an attorney may not settle his clients’ claim without express authorization from his clients. Tucker v. Tucker, 370 Pa. 8, 19, 87 A.2d 650, 656 (1952). The trial court’s finding, however, that Mr. Messer was authorized to settle is wholly supported by the record. In chambers, Mr. Messer informed Judge Wekselman that he believed he was authorized to settle the claim. Reproduced Record at 2. Mrs. Muhammad also testified that she authorized Mr. Messer to settle for a specific sum, but later became dissatisfied with the amount of this sum. Reproduced Record at 5. Thus, there is no reason for this Court to disturb the trial court’s factual finding that Mr. Messer had the appellants’ express consent to settle the claim filed against the appellees. Moreover, we agree with Judge Wekselman’s assessment that the settlement was beneficial to the appellants’ interests since, at trial, they would have had great difficulty in establishing that any of the appellees behaved negligently.

Muhammad v. Children’s Hospital of Pittsburgh, supra, unpublished Memorandum at 6-7.

Our review of both the hearing transcript and the trial court and Superior Court opinions in the prior case convinces us that the only question essential to the decision in that case was whether appellants had authorized the settlement. Both the trial court, and the Superior Court panel recognized that, if appellants had not authorized the settlement, a basis might have existed for the trial court to refuse to enforce the settlement. See, e.g., Rothman v. Fillette, 503 Pa. 259, 264, 469 A.2d 543, 545 (1983); Tucker v. Tucker, 370 Pa. 8, 19, 87 A.2d 650, 656 (1952). The trial court found, however, as a factual matter, that appellants indeed had authorized the settlement; and,, because the record “wholly supported” this finding, we affirmed.

The gravamen of appellees’ collateral estoppel argument, and the basis for their preliminary objections, derives from the comments made by this Court and the trial court that the settlement was “beneficial” or “advantageous” to appellants. These comments, however, which followed the findings that appellants had authorized the settlement, were merely dictum. The comments apparently were made in reference to the testimony of Pamela Muhammad, who stated that she felt the amount of the settlement was “unfair.” N.T. April 23, 1982, at R-3 to 4. The fairness or adequacy of the settlement, however, could not have been essential to the decision on the hospital’s petition for a rule to show cause because, assuming appellees were authorized to settle the case, the adequacy of the settlement was irrelevant to the determination whether the hospital was entitled to have the settlement enforced against appellants. Cf. Restatement (Second) Agency § 15, Comment (c) (“until the [agency] agreement is rescinded, the relation continues and acts done in pursuance of it are effective as to third persons”) (emphasis supplied).

Because the courts’ comments regarding the adequacy of the settlement were not essential to the first judgment, they cannot act now to bar appellants under a collateral estoppel theory. See, e.g., Schubach v. Silver, supra; Matson v. Housing Auth. of Pittsburgh, supra. Accordingly, we conclude that the trial court’s order sustaining the demurrer and entering judgment in favor of appellees cannot be affirmed based on collateral estoppel.

CONCLUSION

For the foregoing reasons, we hold that the trial court erred in concluding that appellants’ cause of action in the instant case is barred by our prior decision in Muhammad v. Children’s Hosp. of Pittsburgh. Appellants are not barred from litigating the adequacy of the settlement; thus, a demurrer to their legal malpractice action cannot be sustained on the ground that appellants cannot prove that pecuniary damages resulted from appellees’ prior legal representation. Accordingly, because we are satisfied that our prior decision does not preclude appellants from bringing this action, we reverse the order below sustaining the demurrer and entering judgment in favor of appellees, and remand the case for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction is relinquished.

      . The other three issues presented, not relevant to this appeal, were
      1. whether Mr. Muhammad expressly consented to the agreement;
      2. whether the court erred in presiding over both the pre-trial conference and the evidentiary hearing; and
      3. whether the court erred in proceeding with the evidentiary hearing when Mrs. Muhammad was unrepresented by counsel.

        See Muhammad v. Children’s Hosp. of Pittsburgh, supra, unpublished Memorandum at 1-2.

      . In their briefs filed on appeal, both parties address the question whether, assuming our prior decision does not act as a bar, appellants’ complaint otherwise sets forth a valid cause of action for legal malpractice. We note, however, that the trial court explicitly based its order upon its conclusion that our prior decision in Muhammad v. Children's Hosp. of Pittsburgh bars the present action. Accordingly, we need not determine, and we express no view regarding, the question whether appellants’ complaint otherwise sets forth a valid cause of action. It will be for the trial court on remand to determine


author: WIEAND, Judge:

text:
    543 A.2d 1143
    In re ESTATE OF Harry SIDLOW, Deceased. Appeal of Hyman B. SIDLOW.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1987.
    Filed May 17, 1988.
    Reargument Denied July 13, 1988.

      Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

Harry Sidlow died December 20, 1984, leaving a holographic will dated February 9, 1983. The will was admitted to probate in Delaware County, Pennsylvania, on December 27, 1984, and letters of administration c.t.a. were issued to the decedent’s brother, Hyman Sidlow. On January 14, 1985, an earlier will, dated September 12, 1977, was filed in New Castle County, Delaware, and letters testamentary were there issued to Anita Cohen, a niece pf the testator’s deceased wife. Cohen then filed in the Orphans’ Court of Delaware County, Pennsylvania, a petition to revoke the letters of administration c.t.a. which had been issued to Hyman Sidlow. The court, after full hearing, granted the requested revocation of letters on grounds that the testator had been domiciled in the State of Delaware at the time of his death. Hyman Sidlow appealed.

He argues (1) that Anita Cohen lacked standing to challenge the issuance of letters by the Register of Wills; (2) that the testator’s domicile could not properly be challenged by a petition to revoke letters which had been issued pursuant to an unchallenged probate of a holographic will; and (3) that the orphans’ court erred in finding that the testator was domiciled in the State of Delaware. These issues assume their proper perspective when viewed against the different legal standards regarding the validity of holographic wills in the State of Delaware and the Commonwealth of Pennsylvania.

Harry Sidlow and his wife, Nettie, lived for approximately twenty years in an upstairs, duplex apartment on Haverford Avenue in Overbrook Park, Delaware County, Pennsylvania. During these years Harry Sidlow conducted a check cashing business, known as “Harry’s Check Cashing, Inc.” at 503 Main Street, Darby, Delaware County, Pennsylvania. On or about April 15, 1976, Sidlow and his wife leased an apartment situated on the other side of the Pennsylvania line, but in close proximity thereto, at 3609 Society Drive, Claymont, Delaware. Although Harry continued to conduct his check cashing business in Pennsylvania, he and his wife lived in the Delaware apartment until Nettie died in 1982. Harry did not dispose of the Delaware apartment after his wife’s death, but thereafter he spent most of his nights in the apartment which was located above his place of business in Darby, Pennsylvania.

On September 12, 1977, Harry had executed a will by the terms of which he left his entire estate to his wife, if she survived him; and if she failed to survive him, he bequeathed the sum of ten thousand ($10,000) dollars to Rosalyn Epstein and the remainder of his estate to Anita Cohen, his wife’s niece. An undated codicil changed the specific bequest to five thousand ($5,000) dollars to Harry Daniel Elliott, but again left the remainder to Anita Cohen.

On February 9, 1983, Harry executed an unwitnessed, handwritten will by which he purported to leave his estate to his sisters, Eva and Ethel, and to his brother, the appellant, “to be used as they see fit with the exception that they remember to help their cousins if they need [ — ] also to help my sister-in-law, Reba, the same as I have in the past.” Three days later, he wrote on his copy of the earlier, 1977 will as follows: “This copy and original will now in Harry Baum’s possession is null and void dated 2-12-1983 s/ Harry Sidlow.”

When Harry Sidlow died almost two years later, he left a net estate of approximately $300,000. The vast majority of his estate was situated in Pennsylvania, including real estate situated at 503 Main Street, Darby and 891-893 Main Street, Darby.

As a general rule, a party must have an interest in order to challenge the grant or denial of letters to administer a decedent’s estate. See: In re Obici’s Estate, 373 Pa. 567, 570, 97 A.2d 49, 50 (1953). See also: 20 Pa.C.S. §§ 907, 908 (referring to “any party in interest”); Wilson’s Estate, 52 Berks 67 (1959); Wertz’s Estate (No. 1), 6 Pa.D. & C. 2d 429 (York 1955); 32 Std.Pa.Prac.2d § 153:102. A non-relative beneficiary under a will which has been expressly revoked lacks standing to challenge the administration of a later will. See: McCarty’s Estate, 355 Pa. 103, 49 A.2d 386 (1946). However, a legatee under a prior will whose legacy is revoked only by implication upon the execution of a later will does have standing to challenge the validity of the later will because the contestant would be entitled to recover under the earlier will if the later will were declared invalid. See: Ash’s Estate, 351 Pa. 317, 319, 41 A.2d 620, 621 (1945). This is consistent with the principle that, absent a specific revocation, the doctrine of relative revocation revives an earlier will which has been impliedly revoked by a subsequent will which is later declared invalid.

Revocation may be effectuated by any later writing which evidences the decedent’s intent to revoke, specifies what is to be revoked, and bears the decedent’s signature at the end thereof, so long as it was executed with an intent to revoke. 40 P.L.E. Wills § 156. See: 20 Pa.C.S.A. § 2505. Words of revocation marked on a duplicate will may be sufficient to revoke an original which the testator is unable to obtain. See: Taubel’s Will, 398 Pa. 19, 156 A.2d 858 (1959). No specific words of revocation are required, but phrases such as “null and void” have been held to be sufficient. See: Kehr’s Estate, 373 Pa. 473, 95 A.2d 647 (1953). See also: Holt’s Estate, 405 Pa. 244, 174 A.2d 874 (1961). However, in order for the revocation to be effective the signature of the testator must be proved by two competent witnesses, although they need not be subscribing witnesses. See: Taubel’s Will, supra.

In the instant case, Anita Cohen was the residuary legatee under the testator’s 1977 will. Although it appears that the testator attempted to make a specific revocation of that will, the validity of the revocation was not the subject of the hearing before the orphans’ court. Consequently, the record fails to contain evidence establishing the genuineness of Harry Sidlow’s signature as it appears on the words of revocation affixed to his copy of the 1977 will. The original of the 1977 will has been admitted to probate in the State of Delaware, and on the basis thereof letters testamentary were issued to Cohen. Under these circumstances we conclude that Anita Cohen had sufficient standing to challenge the letters of administration c.t.a. which had been issued in Pennsylvania to administer the decedent’s estate in Pennsylvania.

The provisions of 20 Pa.C.S. § 3181(a) permit the revocation of letters of administration “whenever it appears that the person to whom the letters were granted is not entitled thereto.” In the past, the Supreme Court has permitted the matter of the decedent’s place of residence to be litigated in proceedings to revoke the grant of letters of administration. See: In re Obici’s Estate, supra. On the other hand, when there is a will, the provisions of 20 Pa.C.S. § 3181(b) permit the revocation of “letters testamentary or of administration ... [which are] not in conformity with the provisions of a will admitted to probate.” Where a will has been admitted to probate, the proper means for challenging the admission of the will to probate and the issuance of letters to administer the estate is by an appeal from probate. This was the procedure followed in In re Estate of McKinley, 461 Pa. 731, 337 A.2d 851 (1975).

Because of the relief requested by the petitioner in the instant case, the orphans’ court revoked the letters of administration c.t.a. which had been issued to Hyman Sid-low. The result is an apparently valid will, duly admitted to probate in Pennsylvania, with no one to administer the testator’s estate. The better procedure would have been for Cohen to raise the issue of the decedent’s domicile by an appeal from the admission of his will to probate in Pennsylvania. Only if the testator had been a domiciliary of Delaware County, Pennsylvania, would his will properly have been admitted to probate and letters of administration c.t.a. issued by the Register of Wills of Delaware County.

In Loudenslager’s Estate, 430 Pa. 33, 240 A.2d 477 (1968), the Supreme Court said:

The sole place of probate of a will of a Pennsylvania resident is mandated by statute to be the county wherein such person had “his last family or principal residence” ... at the time of his death. Under our case law, “residence”, in the statutory sense, is synonymous with “domicile” (Obici Estate, 373 Pa. 567, 570, 571, 97 A.2d 49 (1953)). “The domicile of a person is the place where he has voluntarily fixed his habitation with a present intention to make it either his permanent home or his home for the indefinite future:”: Publicker Estate, 385 Pa. 403, 405, 123 A.2d 655 (1956). See also: Dorrance’s Estate, 309 Pa. 151, 172, 163 A. 303 (1932). We further said in Publicker, supra: “To effect a change of domicile there must be a concurrence of the following factors: (1) physical presence in the place where domicile is alleged to have been acquired, and (2) an intention to make it his home without any fixed or certain purpose to return to his former place of abode: [citing an authority].” ([385 Pa.] pp. 405, 406, 123 A.2d p. 658).
In determining a person’s domicile, the language of the United States Supreme Court, almost a century ago in Mitchell v. United States, 21 Wall. 350, 22 L.Ed. 584, is most appropriate: “A domicile once acquired is presumed to continue until it is shown to have been changed. Where a change of domicile is alleged the burden of proving it rests upon the person making the allegation * * *. Mere absence from a fixed home, however long continued, cannot work the change [of domicile]. There must be the animus to change the prior domicile for another. Until the new one is acquired the old one remains. These principles are axiomatic in the law upon the subject.” (21 Wall. p. 353). See also: Price v. Price, 156 Pa. 617, 625-627, 27 A. 291 (1893); Dorrance’s Estate, supra; Pusey’s Estate, 321 Pa. 248, 249, 265, 184 A. 844 (1936); Obici Estate, supra.

Id., 430 Pa. at 37-38, 240 A.2d at 479. See also: In re Estate of McKinley, supra; In re Obici’s Estate, supra. In the instant case, the decedent’s domicile was initially in Pennsylvania. The requisite animus to change his domicile to Delaware had to be a present intention of permanent or indefinite residence in Delaware or, to phrase it differently, the absence of any intention not to reside there permanently or indefinitely. See: Commonwealth v. Petrosky, 168 Pa. Super. 232, 240, 77 A.2d 647, 652 (1951).

After having been domiciled in and maintaining a business in Pennsylvania for twenty years, the testator and his wife leased an apartment in Delaware in April, 1976. The apartment was located only a short distance from the Pennsylvania line, for the testator travelled daily to Darby, Pennsylvania, where he continued to attend to his business. The testimony showed that he had leased the apartment in Delaware at the request of his wife. She had received a threat in the old locale, according to testimony, and a situation had arisen in which “he wanted to stay in Pennsylvania, and she was bugging him to get near a relative, or something like that, and she wanted to go down there. So, he said, just to satisfy her, he would get her a place.”

After his wife died in 1982, the testator spent almost all of his time in Pennsylvania and at least three or four nights a week at the Darby apartment. The testator’s newspapers and magazines were delivered to the Darby apartment; he frequently entertained there; and his soiled clothing and trash reflecting everyday living could be found there. One of his friends, a police officer who played cards with him at the Darby apartment, testified that he wasn’t aware that the testator had another apartment. Another friend, who testified that the testator had slept at the Darby apartment most of the time, said that she had occasionally gone with him to the apartment in Delaware, where she had done his laundry. She said she had found canned goods in the Delaware apartment which were five or six years old. A sister testified that the testator had allowed her to reside in the Delaware apartment for several two week periods during which the testator was not present; and the testator’s brother, Hyman, had used the apartment for six months after the breakup of his marriage. During that six month period, the testator had not occupied the apartment in Delaware.

During the years in which the testator had lived in Delaware with his wife, he filed Pennsylvania tax returns; he employed a Pennsylvania stockbroker, a Pennsylvania insurance agent, and Pennsylvania physicians. The testator’s medicare coverage listed his Pennsylvania address; and six months before his death he told an insurance adjustor that he lived in Pennsylvania.

In an attempt to show that the testator’s domicile had been changed to Delaware, evidence was offered that other tenants in the Delaware apartment building had sighted him in the area occasionally; that he frequently played cards on Monday evenings at a nearby club; that at the Pennsylvania hospital where he died, his address had been listed as the Delaware apartment; that prior to burial in a Pennsylvania cemetery, Shiva services had been held in the Delaware apartment; and that following his death, notices were published in Delaware newspapers.

Other evidence was equivocal. At the time of his death, the testator owned two Cadillacs, one registered in Pennsylvania and the other in Delaware. He held driver’s licenses which had been issued by both states. He also had bank accounts in both states, although most of his money was held in Pennsylvania banks. In addition to a well furnished apartment in Delaware, the testator had a more modest apartment above the place of business which bore his name in Darby. He had made arrangements for the cleaning of both apartments.

As a general rule, the burden of proof lies with the party who alleges a change of domicile. See: Loudenslager’s Estate, supra; In re Obici’s Estate, supra. In the instant case, there can be no dispute—in fact, there was none—that the testator had been domiciled in Pennsylvania before he leased the Delaware apartment in April, 1976. The burden, therefore, was on Anita Cohen to show that the testator’s domicile had been changed to Delaware. This burden of proof was not met. Although the testator leased the Delaware apartment and physically moved into it with his wife, the evidence does not establish that he intended to make it his permanent home, without intent to return to Pennsylvania. At no time did the testator sever his ties with Pennsylvania. It was in Pennsylvania that he maintained his business and to which he journeyed daily. It was there, in Pennsylvania, that he maintained an apartment, where he continued to maintain most of his assets, including bank accounts, real estate, and an automobile, and where he arranged to cover his assets with insurance. It was in Pennsylvania that he considered his home to be, and it was there that he obtained medical care when it was needed. He evidenced the truism that “where [a man’s] treasure is, there will [his] heart be also.” Matthew 6:21. In this case, the testator’s treasure and also his heart were in Pennsylvania.

It was not surprising, therefore, that the testator returned physically and lived in Pennsylvania after the death of his wife. Thereafter, the testator’s physical presence, his business, his assets, his health care, and most of his recreational activities were located in Pennsylvania. Remaining in Delaware were a largely unused apartment, an automobile, a certificate of deposit, and little else. He truly was a Pennsylvania domiciliary.

We hold, therefore, that the evidence was insufficient to show that the testator ever intended to change his domicile from Pennsylvania to Delaware. When the orphans’ court determined that his domicile was in Delaware, it fell into error.

The order revoking the issuance of letters of administration c.t.a. in Pennsylvania is reversed.

KELLY, J., concurs in the result.

      . The principal difference is that the law of Pennsylvania does not require subscribing witnesses to a will. See: 20 Pa.C.S. § 2502; Keiper’s Estate (No. 2), 20 Pa.D. & C. 2d 521 (Monroe 1960); 40 P.L.E. Wills § 137. Delaware law, however, does permit its courts to enforce wills which are valid in the place where the decedent had an abode at the time of his death. See: 59 Del. Laws, c. 384, § 1, 12 Del. C. § 1306.

      . The record reveals that the validity of the 1977 will is being actively challenged in the courts of Delaware.

      . It was suggested that a Delaware domicile could also be inferred from the fact that the testator wrote his holographic will on the back of a sheet of checks which had been embossed with the address of his Delaware apartment. The legitimacy of such an inference is questionable. It may as well have meant that he was no longer doing regular banking at the Delaware institution.