text:
    Hasson v. Hasson

      John J. DeCaro, for plaintiff

      Barbara Seman Ochs, for defendant
    August 8, 2013
   HODGE, J.,

Before the court for disposition are competing demands for a de novo support hearing filed on behalf of the plaintiff, Carol A. Hasson (hereinafter, “wife”), and the defendant, Mark A. Hasson (hereinafter, “husband”). A brief summation of the relevant factual and procedural background of this case is as follows:

Husband and wife were married on June 4, 1988. During the course of their marriage, the parties established an insurance business through State Farm Insurance. Husband and wife initially worked together in the business. Husband and wife mutually agreed that wife would quit employment following the birth of their oldest child, Jenna. In 2004, the parties’ youngest child, Mia, was bom. For the duration of their marriage, husband continued to mn his insurance company, and wife worked as a homemaker. On June 6, 2012 the parties separated when husband left the marital residence. Wife continued to reside at the marital residence with Mia and Jenna.

Husband initially continued to pay for all of the parties’ monthly expenses. Husband paid $3,100 each month for the mortgage on the marital residence, in addition to providing wife with $3,000.00 to $4,000.00 per month for her other expenses. In April 2013, husband asked wife to list the marital residence for sale, but wife refused. Wife subsequently filed for child and spousal support. Following a conference on May 21, 2013, this court entered a support order requiring husband to pay wife $719.23 a month in child support and $1,536.64 a month in spousal support for a total support obligation of $2,255.87, plus $100.00 towards arrears. Wife’s support award included a $ 1,151.66 deviation for the mortgage on the marital residence. Both parties filed a timely demand for a de novo hearing.

Wife subsequently filed a petition for emergency relief, wherein wife requested this court order husband to pay the mortgage on the marital residence. Husband also filed a petition to list home for sale. Hearings were held on July 12,2013 and July 17, 2013, after which this court entered an order granting wife’s petition for emergency relief and directing husband to bring the mortgage on the marital residence up to date. Husband was further directed to make all subsequent payments on the marital residence pending a final economic resolution of this case. Moreover, this court granted husband’s petition to list home for sale.

This matter is now before the court for a determination regarding wife’s monthly earning capacity and husband’s monthly income. The court will address each of these issues in turn.

I. Wife’s Monthly Earning Capacity

The first issue pending before the court is wife’s earning capacity. Wife is 47 years old, and she has a high school education. Prior to 1996, wife worked full time for husband’s insurance business. Wife was licensed to sell various forms of insurance, and she contributed significantly to husband’s business. Since 1996, wife has served as a homemaker and primary caregiver for the parties’ children. Wife contests her current ability to work full time because she has arthritis and suffers from chronic fatigue. Wife presents no medical evidence to support her assertions. Husband argues that wife is capable of finding employment and should be assessed a full-time minimum wage earning capacity.

A person’s earning capacity is defined “not as an amount which the person could theoretically earn, but as that amount which the person could realistically earn under the circumstances, considering his or her age, health, mental and physical condition and training.” Myers v. Myers, 592 A.2d 339, 342 (Pa. Super. 1991). In addition, a court should consider the amount of time that a wife has been out of work during the parties’ marriage. Adams v. Adams, 563 A.2d 913 (Pa. Super. 1989). In the present case, Wife has been out of work for a significant period of time while she served as a homemaker and primary caregiver. However, wife does have training in insurance sales. Her insurance licenses were not maintained in the past seventeen years, but wife would be able to update her licenses with some effort. Wife asserts that she is unable to work because of her arthritis and chronic fatigue, but the court finds wife’s testimony to be unreliable in this regard given the fact that wife testified to hosting elaborate house parties, birthday parties and holiday events for large groups of people. Additionally, wife cannot contend that the majority of her day is consumed with watching the parties’ youngest daughter, Mia, because Mia is of school age. The court concludes that given wife’s relatively young age, education, insurance training/experience, it is appropriate to assess wife with a full-time minimum wage earning capacity.

II. Husband’s Net Monthly Income

The court has thoroughly reviewed the husband’s 2012 federal income tax returns after considering Husband’s testimony with respect to his monthly income and expenses. The court concludes that husband’s tax returns are unreliable and inaccurate. Although husband’s tax returns indicated that they were prepared by a professional accountant, they evidence double expenditures that cause the court concern. Examples of readily double expenditures can be found on Form 1120. Line 9 of the summary page lists repairs and maintenance expenses of $36,921.00; on the “Other Deductions” page, husband listed repairs again for $15,440.00. The combined total of repairs and maintenance equals $52,361.00 in reported deductions.

Further expenses are as follows: On line 10 of the summary page, husband lists rents in the amount of $10,212.00, and on the “Other Deductions” page, husband denotes lease expenses in the amount of $49,231.00, for a total of combined expenses of $59,443.00. On the summaiy page, line 8 lists wages of $38,492.00; on the “Other Deductions” page, office expenses are $68,441.00, which does not include separate itemizations on the “Other Deductions” page for repairs, maintenance, postal expenses, supplies, utilities and water. The “Other Deductions” page that corresponds to Form 1120 contains a list of miscellaneous expenditures of $13,663.00. Additionally, husband acknowledged that the deduction for the purported auto deduction in the amount of $10,815.00 was approximately 80% business related, which would correlate to a figure of $8,652.00, as opposed to $10,815.00 as listed on the return.

The court’s analysis of the above expenditures, plus the purported business development expense of $48,337.00, leads the court to conclude that husband’s 2012 federal income tax return, and the professed expenses contained therein, are not credible. It is apparent to the court, as suggested by wife’s counsel, that husband was using his business account as his personal checking account. Husband hid multiple personal expenditures in the various deductible line items as business expenses.

In anefforttoestablishhusband’sactualmonthly income, the court considered all of the monthly expenditures paid by husband in the recent months up to the date of the de novo hearing. It is the court’s determination that husband paid expenses on an average monthly basis of $9,434.00. As a result, the court will assign the husband with a net monthly earning capacity of $9,434.00.

The court will enter the following order consistent with the findings set forth in this opinion.

ORDER OF COURT

And now, this 8th day of August, 2013, with these matters being before the court for a de novo support hearing; a [petition] for emergency relief; and a petition to list home for sale, with Carol A. Hasson appearing and being represented by Barbra Seman Ochs, Esquire, and Mark A. Hasson appearing and being represented by John J. DeCaro, Jr., Esquire, and in consideration of the testimony and evidence presented, consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Based on the testimony and evidence presented, and consistent with the attached opinion, plaintiff/wife is assessed a full-time minimum wage earning capacity, and therefore establishes net monthly earnings for plaintiff/ wife in the amount of $ 1,111.43 per month.
2. Based on the testimony and evidence presented, and consistent with the attached opinion, defendant/husband is assessed a net monthly income in the amount of $9,434.00.
3. Based upon the court’s prior determination requiring defendant/husband to pay the parties’ mortgage, the court declines to implement any deviation for this expense, defendant/husband shall continue to pay the mortgage in accordance with this court’s June 30, 2013 order and receive credit for those payments against the final equitable distribution award.
4. Upon application of the Pennsylvania Support Guidelines set forth in the Rules of Civil Procedure, the court summarizes the defendant’s obligation to the plaintiff as follows:
a. Spousal support $2,112.72 per month
b. Child support $1,280.17 per month

TOTAL OBLIGATION: $3,392.89 per month

5. Based upon the opinion of the court and the findings of fact set forth therein, it is hereby ordered, adjudged and decreed that the defendant shall pay to the Pennsylvania State Collection and Disbursement Unit, the sum of $3,392.89 per month, as delineated in the prior paragraph of this order, with the first payment due immediately and monthly thereafter until an income attachment is implemented.

6. The effective date of this order of court is April 26, 2013.

7. The Domestic Relations Section of Lawrence County is to set the amount of arrearages and the arrearages will be payable in the sum of $250.00 per month in addition to the support obligation of $3,392.89 per month for a total monthly payment of $3,642.89.

8. Any un-reimbursed medical expenses that exceed $250.00 annually per child and/or spouse are to be paid as follows:

a) 10.54% by the plaintiff;
b) 89.46% by the defendant.

9. All other provisions of the prior order of court dated May 30, 2013, not inconsistent with this order of court, are incorporated herein as though fully set forth and shall continue in full force and effect as a final order of court except as modified and supplemented by these findings and this order.

10. The Domestic Relations Section is directed to serve a copy of this order of court upon counsel of record, and if a party is not represented by counsel, then upon that party at their last known address as contained in the court’s file.

      . Wife also filed a petition for emergency relief at the civil action, wherein Wife is designated as the defendant and husband is designated as the plaintiff. Husband also filed a petition to list home for sale at the civil action. The court reached a determination on those petitions in a separate order of court.

      . Jenna is currently 21 years old and currently attends Westminster College on a full time basis. During the academic year, Jenna lives in an off campus apartment in New Wilmington.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    University of Scranton v. City of Scranton Zoning Hearing Board

      Patrick J. Lav elle, for appellant

      Daniel L. Penetar, Jr., for respondent
    August 9, 2013
   NEALON, J.,

A local university filed an application with the Zoning Hearing Board of the City of Scranton (“ZHB”) seeking a dimensional variance for three sight distance triangle requirements in order to raze an existing nonconforming structure and replace it with a new building in the same dimensional footprint as the present, nonconforming structure. After the ZHB denied that dimensional variance request on the sole ground that the proposed new building will make use of the adjacent intersection “less safe” for motorists and pedestrians, the university filed this zoning appeal on the basis that the ZHB’s traffic safety finding was not supported by substantial evidence in the record.

Under Pennsylvania decisional precedent, a zoning board may deny a variance due to traffic congestion and safety concerns, provided that the finding of adverse traffic effects is supported by expert testimony, accident reports or traffic count studies. The only expert evidence presented during the zoning hearing in this case indicated that the existing sight distance nonconformity will “slightly” improve with the new building, that the police accident reports reflect no accidents at the subject intersection within the past five years, and that vehicular and pedestrian traffic will continue to travel safely through the intersection after the construction of the new building. No person testified in opposition to the university’s variance request, nor was any competent evidence of adverse traffic effects introduced during the hearing.

A zoning board’s decision is subject to reversal if the board abuses its discretion, and a zoning board commits an abuse of discretion if its findings are not supported by substantial evidence. Since the ZHB did not base its traffic safety finding upon the minimum proof of adverse traffic effects as required by appellate case law, it committed an abuse of discretion in denying the university’s application for a dimensional variance. Furthermore, the zoning ordinance states that reconstruction or expansion of a preexisting, nonconforming structure “shall” be permitted if such action will not increase the existing nonconformity or violate any setback requirements, and it is undisputed that the proposed construction will not increase the present nonconformity or contravene any setback restrictions. Accordingly, the ZHB’s decision denying the university’s request for three sight distance triangle variances will be reversed.

I. FACTUAL BACKGROUND

On May 2, 1977, the University of Scranton (“the University”) purchased the former YWCA building which is located at the intersection of Linden Street and Jefferson Avenue in Scranton. (Docket entry no. 3, exhibit A at p. 7). The four story building, which is currently known as Leahy Hall (“Leahy Hall”), was originally constructed in 1907. (Scranton City Zoning Hearing Transcript (“ZHT”) on 6/12/13 at pp. 4, 8; docket entry no. 3 at p.4). Leahy Hall is located in a “Downtown Commercial District” (“C-D Zone”) for which there are no setback requirements under the Scranton zoning ordinance. (ZHT 6/12/13 at pp. 25-26).

The University’s physical therapy, occupational therapy and exercise science departments are located in Leahy Hall which is situated adjacent to McGurrin Hall, 219 Jefferson Avenue, which houses the University’s Panuska College of Professional Studies. (Id. at pp. 7-8). “Expanded facilities” are “desperately needed” for the University’s “physical therapy, occupational therapy and exercise science departments which have a strong existing relationship with the nursing programs and the Leahy Free Clinic which are located in McGurrin” Hall. (Id. at p. 8). Among those growing programs are therapy and exercise services that are provided by the University on a “pro bono” basis for children “who are severely and physically handicapped,” have “autism” or “Down Syndrome,” or are “clients of the Northeast Intermediate Unit.” (Id. at pp. 11-13).

The University explored the prospect of adding four additional floors to the existing Leahy Hall structure, but “after comprehensive studies by several architects over the past three to four years, it has been determined that the [Leahy Hall] building construction does not meet code” since “the floors do not align” and Leahy Hall’s “existing wood structure simply isn’t going to hold another four floors.” (Id. at pp. 8-9). Additionally, the University investigated the possibility of adding the additional floors to McGurrin Hall, but two separate architectural firms concluded that McGurrin Hall’s foundation and columns will not support an eight story structure. (Id. at p. 19). Consequently, the University developed plans to raze the current Leahy Hall facility and to construct a new eight story building in the same dimensional footprint as the existing structure. (Id. at pp. 8, 13-15). The projected construction of the new Rehabilitation Center Building will cost $47,500,000.00 and will generate up to $900,000.00 in permit fees for the City of Scranton. (Transcript of proceedings (“T.P.”) on 8/5/13 at p. 18).

Section 803 .C of the Scranton Zoning Ordinance prescribes sight distance requirements for buildings that are situated at intersections within the City of Scranton. As per Section 803.C.1 of the ordinance, the purpose of the sight distance restrictions is “[t]o ensure that traffic passing through an intersection or turning onto a street can safely see oncoming traffic.” (Scranton, Pa., Zoning Ordinance art. VIII, §803.C.l at p. 8-4 (1993)). Section 803.C.5 sets forth the minimum “sight distance triangle” requirements for intersections, and both the existing Leahy Hall structure and the proposed Rehabilitation Center Building do not satisfy those requirements in the zoning ordinance. (ZHB 6/12/13 atp. 14).

However, Section 806.C of the zoning ordinance addresses “Nonconforming Structures” which were designed and constructed before the adoption of the 1993 zoning ordinance’s dimensional restrictions, including its sight distance triangle requirements. Section 806.C.l(a) states that “[t]he Zoning Officer shall permit a nonconforming structure to be reconstructed or expanded” so long as “such action will not increase the severity or amount of the nonconformity...or create any new nonconformity” and the proposed “expanded area will comply with the applicable setbacks in that District.” (Scranton, Pa., Zoning Ordinance art. VIII, §806.C.l(a) at pp. 8-7 to 8-8 (1993)). It is uncontested that the proffered construction of the University’s Rehabilitation Center Building will not increase the existing sight distance nonconformity of Leahy Hall and, in fact, will actually decrease the present nonconformity as a result of the proposed loading and unloading zone for special needs and pediatric patients, which is to be installed in a recessed area on the Jefferson Avenue side. (ZHT 6/12/13 at pp. 9-10, 13, 15). Moreover, since the building is located in a C-D District which does not have any setback requirements, (see n.l, supra), the intended construction “will comply with the applicable setbacks in that District.” Thus, the criteria for the grant of a permit for the expansion of a nonconforming structure (Leahy Hall) have been satisfied.

Although the language of Section 806.C.l(a) indicates that the University was entitled to the issuance of a permit by the zoning officer without the necessity of securing dimensional variances, the University nevertheless filed an application with the Zoning Hearing Board of the City of Scranton (“ZHB”) seeking three sight distance variances. In its application, the University represented that “[t]he proposed building footprint location will not worsen the present condition regarding the sight distances.” (Docket entry no. 3, exhibit A at p. 1). The pertinent sight distance triangles relate to traffic turning (1) from Kressler Court onto Linden Street, (2) from Linden Street onto Jefferson Avenue, and (3) from Jefferson Avenue onto Linden Street. (Id. at p. 2). The University maintained in its application that “the sight distance triangle for traffic turning onto Linden Street from Kressler Court looking to the right does not apply since Linden Street is a one-way street where traffic only comes from the left direction.” (Id.). The University further submitted that “[t]he sight distance triangle for traffic turning onto Jefferson Avenue from Linden Street should not apply since the intersection is signalized with cued traffic.” (Id.). Last, the University asserted that “[t]he sight distance triangle for traffic turning onto Linden Street from Jefferson Avenue should not apply since Linden Street is one-way and does not currently accept traffic from Jefferson Avenue.” (Id.).

On June 12, 2013, a hearing was conducted before the Scranton ZHB regarding the University’s application for “a dimensional variance for sight triangle encroachment associated with new building construction at 219 Jefferson Avenue, a C-D Zone.” (ZHT 6/12/13 at p. 1). During the hearing, the project architect, David Hemmler of Hemmler Camayd Architects, addressed the existing building’s nonconformity with the zoning ordinance’s sight distance requirements, and confirmed that the dimensional “footprint of [the new Rehabilitation Center] building is actually better than the footprint of the existing building” and will reduce “the severity of the present nonconformity” relative to sight distance restrictions. (Id. atpp. 13,15). Consistent with the representations contained in the University’s application for a dimensional variance, the consulting professional engineer for the construction project, Mr. David Osborne of CECO Associates, Inc., explained why the sight distance triangles do not apply to the three traffic flow areas at issue. (Id. at pp. 24-27). Mr. Osborne testified that the proposed construction of a new Rehabilitation Center Building will not worsen the present sight distance triangles or create additional safety issues, and that with respect to “the comer of Jefferson [Avenue] and Linden [Street],” the new structure will “slightly improve...the existing sight triangle that is there today.” (Id. at pp. 28-29).

Mr. Osborne also examined the available traffic accident data for the subject intersection, and reviewed the “accident reports for the last five years” that were provided by the Scranton Police Department. (Id. at p. 27). The accident records revealed that “none of the accidents were at the intersection itself or...a result of any sight line issues.” (Id.). Although the project architect, Mr. Hemmler, stated that the proposed eight story structure “may increase slightly” the number of student pedestrians using the intersection of Linden Street and Jefferson Avenue, (Id. at p. 16), Mr. Osborne opined that traffic will continue to travel safely through the intersection after the construction of the new Rehabilitation Building. (Id. at p. 23).

Two labor union representatives, Mr. Drew Simpson of Carpenters and Joiners Local 645 and Mr. Richard Shrader of the Scranton Building Trades Council, also spoke in support of the University’s application for a dimensional variance. Mr. Simpson testified that the proposed project “will employ hundreds of local construction workers that will make a family sustaining wage,” and will provide “a huge benefit to our members and to all of the people who are unemployed in all the building trades, not just the carpenters’ union.” (Id. at pp. 35-36). Mr. Shrader echoed those sentiments and stated that the University’s proposal represents a “very good project for citizens in the City of Scranton” since it will create well paying jobs and produce direct revenue for the city in the form of permit fees. (Id. at pp. 37-38). No person objected to the University’s application or otherwise voiced any opposition to the construction of a new Rehabilitation Center Building.

At the conclusion of the hearing, a narrow maj ority ofthe ZHB members voted to deny the University’s application for a dimensional variance, with Carri Newcomb, Stephen Bartnicki and Mary Ann Wardell voting against the application and Steven Kochis and Lance Stange voting in favor of the University’s application. (Id. at pp. 38-39). In its subsequent decision dated June 20,2013, the ZHB made three specific findings of fact that were predicated upon the evidence that was introduced during the hearing on June 12, 2013. First, the ZHB referenced Mr. Hemmler’s testimony that “the footprint of the new building will be exactly the same as the old building as far as the sight triangle is concerned.” (Docket entry no. 1, exhibit B at ¶5). Second, the ZHB cited the testimony of Mr. Osborne to the effect that: (a) “the purpose of the sight triangle is to ensure that traffic passing through an intersection can do so safely;” (b) “due to the traffic signals at the intersection and the one-way traffic of Linden Street, traffic passing through this intersection can, in fact, do so safely and has done so for many years;” and (c) the “accident reports in this area for the last five (5) years” confirmed that no accidents “occurred at this intersection.” (Id. at ¶6). Last, the ZHB acknowledged the testimony of Mr. Simpson and Mr. Shrader who both stated that “the project will have a positive impact on jobs for their unions and permit fees for the City.” (Id. at ¶7). The ZHB made no other findings of fact based upon the evidence presented during the zoning board hearing.

In the “Conclusions of Law” section of its decision, the ZHB quoted portions of the foregoing zoning provisions relating to intersectional sight distance requirements and the expansion of pre-existing, nonconforming structures, as well as the criteria for the grant of a variance under section 111.E.3 of the zoning ordinance. (Id. at ¶¶10-12). Without providing any specific rationale for its denial of the University’s application, the ZHB concluded its written decision by summarily stating that “[b]y a vote of 3-2, the Application for a Variance was denied.” (Id. at ¶13). The board did not make any finding in its decision that the University’s proposed construction would create safety hazards for motorists or pedestrians utilizing the intersection of Linden Street and Jefferson Avenue.

On July 3, 2013, the University filed the instant zoning appeal and secured a writ of certiorari directing the ZHB to file the zoning hearing transcript within twenty days. (Docket entry no. 1). On that same date, the court administrator assigned this appeal to the undersigned, fixed deadlines for the filing of the parties’ briefs, and scheduled this matter for oral argument on August 5, 2013. (Docket entry no. 2). In accordance with the notice issued by the court administrator, the parties submitted their briefs on July 10, 2013, and July 23, 2013, (Docket entry nos. 3 - 4), and the ZHB subsequently filed the zoning hearing transcript on July 29, 2013. (Docket entry no. 5).

The University argues that it is entitled to its requested zoning relief under Section 806.C.l(a) of the zoning ordinance since the proposed Rehabilitation Center Building will occupy the same dimensional footprint as the existing nonconforming structure, Leahy Hall. (Docket entry no. 3 at pp. 10-11). The University further asserts that the ZHB abused its discretion by not granting the requested dimensional variance pursuant to Sections 803.C and 111.E.3 of the zoning ordinance. (Id. at pp. 9-10). In its brief in opposition, the ZHB states for the first time that “[t]he Zoning Board found that the proposed new building would increase the student traffic at the intersection thus making it less safe for both the students and the oncoming traffic.” (Docket entry no. 4 at p. 3). Following the completion of oral argument on August 5, 2013, this zoning appeal became ripe for disposition.

II. DISCUSSION

(A) STANDARD OF REVIEW

If no additional evidence is presented to the trial court, the scope of judicial review in a zoning appeal is limited to determining whether the zoning hearing board committed an error of law or abused its discretion. Appeal of Chester County Outdoor, LLC, 64 A.3d 1148, 1151 n.3 (Pa. Cmwlth. 2013); TKO Realty, LLC v. Zoning Hearing Board of the City of Scranton, 2010 WL 3936990, at *3 (Lacka. Co. 2010), aff’d, 23 A.3d 1131 (Pa. Cmwlth. 2011). A zoning hearing board abuses its discretion when its findings of fact are not supported by substantial evidence in the record. Miravich v. Township of Exeter, 54 A.3d 106, 110 n. 4 (Pa. Cmwlth. 2012); City of Scranton v. Zoning Hearing Board of the City of Scranton, 101 Lacka. Jur. 159, 161 (1999), aff’d, 767 A.2d 33 (Pa. Cmwlth. 2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Philadelphia Suburban Development Corp. v. Scranton Zoning Hearing Board, 41 A.3d 630, 633 n. 8 (Pa. Cmwlth. 2012); World Schoolhouse Residences Limited Partnership v. Zoning Hearing Board of City of Scranton, 102 Lacka. Jur. 14, 18 (2000), aff’d, 777 A.2d 544 (Pa. Cmwlth. 2001), app. denied, 567 Pa. 753, 788 A.2d 382 (2001).

(B) PRE-EXISTING, NONCONFORMING STRUCTURE

Section 202 of the Scranton zoning ordinance defines a “Nonconforming Structure” as any structure that was not designed or constructed in compliance with the applicable dimensional provisions of the ordinance, but which “lawfully existed prior to the enactment of such Ordinance or applicable amendment.” (Scranton, Pa., Zoning Ordinance art. II, §202 at p. 2-1 (1993)). At the time that Leahy Hall was originally erected in 1907, there were no zoning laws in effect in Scranton which contained any sight distance requirements. The first Scranton zoning ordinance was enacted in 1924, seventeen years after the construction of Leahy Hall. See In re Emilliani’s License, 30 Pa. D. & C. 276, 278-279 (1937) (stating that the 1924 “Zoning Ordinance derives its authority from the Act of June 21, 1919, P.L. 570, as amended by the Act of May 11, 1921, P.L. 503, and further supplemented by the Act of May 1,1923, P.L. 122.”). Section 39 of the 1924 ordinance provided that nonconforming structures or uses which predated the adoption of that zoning ordinance were not subject to its prohibitory zoning restrictions. See Smith v. Westpfahl, 52 Pa. D. & C.51, 53-55 (Lacka. Co. 1945) (since landowner’s property had housed an automobile repair and service station prior to 1924, it could maintain an apron manufacturing business on that property, even though the property was redistricted into a residential zone by the 1924 ordinance, since the apron manufacturing business was a “non-conforming use of a similar class.”).

The 1924 ordinance remained in effect for more than forty years, see, e.g., Board of Zoning Appeals of City of Scranton v. Silas, 393 Pa. 10, 11-12, 142 A.2d 24, 25 (1958), until it was replaced by a new zoning ordinance in 1965. See Putkowski v. City of Scranton, 58 Pa. Cmwlth. 604, 606, 428 A.2d 743, 744 (1981). The 1965 zoning ordinance was supplanted by a subsequent zoning code on December 28, 1983, see Holmes v. Board of Zoning Appeals of City of Scranton, 130 Pa. Cmwlth. 349, 351 n. 2, 568 A.2d 301, 302 n. 2 (1990), which, in turn, was replaced by the current zoning ordinance that was adopted by Scranton City Council on December 15, 1993, and became effective on December 21,1993. See Philadelphia Suburban Development Corp., 41 A.3d at 631 n.2.

Leahy Hall has continued to operate as a valid nonconforming structure since the adoption of Scranton’s first zoning ordinance in 1924. By the time that the current zoning ordinance was enacted in 1993, Leahy Hall had “lawfully existed” for decades as a pre-existing, nonconforming structure under the 1924, 1965 and 1983 zoning ordinances. Section 806.C.l(a) of the present Scranton zoning ordinance states that “[t]he Zoning Officer shall permit a nonconforming structure to be reconstructed or expanded provided: (i) that such action will not increase the severity or amount of the nonconformity...or create any new nonconformity,” and “(ii) that any expanded area will comply with the applicable setbacks in that District and other requirements of this Ordinance....” (Scranton, Pa., Zoning Ordinance art. VIII, §806.C.l(a)(i)-(ii) at pp. 8-7 to 8-8) (emphasis added). It is uncontroverted that the proposed construction of the new Rehabilitation Center Building will not create any new nonconformity or increase the existing nonconformity, nor will it violate any setback provision inasmuch as it is located in a C-D zone where setbacks are not required. {See n.l, supra.). Hence, based upon the evidentiary record that was developed before the ZHB and which has been submitted for our review, section 806.C.l(a) of the Scranton zoning ordinance obligated the Scranton zoning officer to permit the proposed construction of the new Rehabilitation Center Building in the same dimensional footprint as Leahy Hall. Compare Trettel v. Zoning Hearing Board of Harrison Township, 540 Pa. 430, 434, 658 A.2d 741, 742 (1995) (where language of Harrison Township zoning ordinance stated that a nonconforming use “may be continued” provided that certain criteria were satisfied).

Under Pennsylvania law, the owner of property to which a lawful, nonconforming use has attached enjoys a vested property right that cannot be abrogated or destroyed unless it constitutes a nuisance, is abandoned by the owner, or is extinguished by eminent domain. Pappas v. Zoning Board of Adjustment of City of Philadelphia, 527 Pa. 149, 152-153, 589 A.2d 675, 676-677 (1991); TKO Realty, LLC, supra, at *3; City of Scranton, 101 Lacka. Jur. at 162. In addition, “[t]he property owner has the vested constitutional right to a natural expansion of a non-conforming use.” Bernotas v. Zoning Hearing Board of City of Bethlehem, 2013 WL 2450160, at *6 (Pa. Cmwlth. 2013). Under the doctrine of natural expansion, such a “nonconforming use may be extended in scope, as the business increases in magnitude,” Id. (quoting Peirce Appeal, 384 Pa. 100, 105, 119 A.2d 506, 509 (1956)), and “an overly technical assessment of a nonconforming use cannot be utilized to stunt its natural development and growth.” Id. (quoting Township of Chartiers v. William H. Martin, Inc., 518 Pa. 181, 188, 542A.2d 985, 988 (1988)).

In light of the clear language of Section 806.C.l(a) of the Scranton zoning ordinance and the unchallenged evidence establishing that the construction of the new Rehabilitation Center Building will not increase the present nonconformity or contravene any applicable setback requirement, the Scranton zoning officer had an apparent duty to issue a permit to the University for the proposed construction. See Com. v. Barker, 2013 WL 3475480, at *7 (Pa. Super. 2013) (use of the term “shall” in a statute or other law “denotes a lack of discretion by the person directed to carry out the task directed” since the word “’shall’ means ‘must.’”); In re A.B., 987 A.2d 769, 775 (Pa. Super. 2009) (“Moreover, when a statute contains the word ‘shall’ it is ‘by definition mandatory, and is generally applied as such.’”), app. denied, 608 Pa. 644, 12 A.3d 369 (2010); Taterka v. Bureau of Professional and Occupational Affairs, 882 A.2d 1040, 1043 (Pa. Cmwlth. 2005) (“It is axiomatic under our statutory construction precedent that, by definition, the word ‘shall’ is mandatory, and accordingly entertains no room to overlook a statute’s plain language to reach a different result.”). The record is devoid of any explanation as to why the zoning officer did not grant a permit to the University in compliance with Section 806.C.l(a) of the Scranton zoning ordinance. For whatever reason, the University opted not to challenge the zoning officer’s failure to issue a permit for the construction of the new Rehabilitation Center Building, and instead proceeded to file an application for three dimensional variances from the sight distance requirements in Section 803.C of the Scranton zoning ordinance. As a consequence, only the ZHB’s denial of the University’s dimensional variance request, not the zoning officer’s failure to issue a permit under Section 806.C.l(a), is subject to review in this zoning appeal. (T.P. 8/5/13 atpp. 33, 35-38).

(C) DIMENSIONAL VARIANCE

“The five factors an applicant generally must demonstrate to establish entitlement to a use or dimensional variance are set forth in Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC) Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2,” Schomaker, 994 A.2d at 1199, and the variance criteria set forth in Section lll.E.3(b) of the Scranton zoning ordinance mirror the standards contained in Section 910.2 of the MPC. See TKO Realty, LLC, supra, at *4-5. Generally, a landowner seeking a variance “must establish that the zoning ordinance imposes unnecessary hardship resulting from unique physical conditions of the property; a variance is necessary to enable a reasonable use of the property; the asserted hardship was not self-inflicted; a grant of variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties, or be detrimental to the public welfare; and, the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief.” Bernotas, supra, at *4 (citing 53 P.S. §10910.2).

It is important to note that the University requested a dimensional variance, rather than a use variance. “By applying for a ‘use’ variance, a properly owner seeks permission to devote the property to a particular use that is prohibited by the zoning ordinance (e.g., a commercial use in a residential zone).” McHale v. Board of Zoning Appeals for City of Scranton, 99 Lacka. Jur. 117, 122 (1998). In contrast, “[a] dimensional variance seeks relief from zoning requirements governing lot size, open area, setback, sight distance or yard requirements.” Id. at 123.

In Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), the Supreme Court of Pennsylvania adopted a less demanding standard for the issuance of a dimensional variance. The Supreme Court stated that “[wjhen seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations.” Hertzberg, supra, Bernotas, supra, Schomaker, 994 A.2d at 1200. Therefore, “the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.” Hertzberg, supra; Vaughn v. Zoning Hearing Board of Township of Shaler, 947 A.2d 218, 222 n. 7 (Pa. Cmwlth. 2008). As a result, “the quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought.” Hertzberg, 554 Pa. at 259-260, 721 A.2d at 47-48. Accord Appeal of Towamencin Township, 42 A.3d at 370 (“In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, our Supreme Court explained that when the application is for a dimensional rather than a use variance, the analysis of what constitutes unreasonable hardship... allows for a lesser quantum of proof.”). In determining whether the applicant has established the requisite unnecessaiy hardship for the issuance of a dimensional variance, “courts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Hertzberg, 554 Pa. at 264, 721 A.2d at 50; Bernotas, supra, at *4; Mitchell v. The Zoning Hearing Board of the Borough of Mount Penn, 838 A.2d 819, 828 (Pa. Cmwlth. 2003).

Accordingly, “the ZHB may grant a variance, provided that the applicant has shown that compliance with the ordinance in question would work an unnecessary hardship upon the applicant and that the proposed use would not be contrary to the public interest.” Appeal of Towamencin Township, 42 A.3d 366, 370 (Pa. Cmwlth. 2012). Although section 111.E.3(b) of the Scranton zoning ordinance likewise requires an applicant for a variance to establish “unnecessary hardship” as a result of the property’s unique physical circumstances which prohibit its development in strict conformity with the zoning ordinance, the ZHB did not reject the University’s request for dimensional variances based upon a purported failure to demonstrate the requisite “unnecessary hardship” under the MPC or the zoning ordinance. Rather, the ZHB denied the University’s application for three sight distance variances on the sole ground “that the proposed new building would increase the student traffic at the intersection, thus making it less safe for both the students and the oncoming traffic.” (Docket entry no. 4 at p. 3). At the time of the hearing on August 5, 2013, the ZHB’s solicitor agreed that the only reason proffered by the ZHB for denying the University’s requested zoning relief was that the grant of a variance was “contrary to the public interest” due to the expressed safety issues, not because of the University’s failure to establish “unnecessary hardship,” (T.P. 8/5/13 at pp. 43-44). As a result, the narrow issue to be decided in this appeal is whether the ZHB abused its discretion by ostensibly finding that the University’s construction of a new Rehabilitation Center Building will adversely affect the safety of motorists and pedestrians traversing the intersection of Linden Street and Jefferson Avenue.

In order to deny various forms of zoning relief to landowners based upon traffic safety concerns, a certain quantum and character of proof is required. “Proof of adverse traffic effects usually requires a mixture of proof in the form of traffic counts, accident records, and expert evidence.” Bailey v. Upper Southampton Township, 690 A.2d 1324, 1327 (Pa. Cmwlth. 1997). Accord In re Appeal of Brickstone Realty Corp., 789 A.2d 333, 342 (Pa. Cmwlth. 2001) (“Proof of abnormal and hazardous traffic effects would usually require evidence in the form of traffic counts, accident records, and expert evidence.”), app. denied, 569 Pa. 723, 806 A.2d 863 (2002). Subjective lay opinion or testimony concerning increased traffic and prospective safety issues is insufficient to support a zoning hearing board’s finding of adverse traffic effects. See In re Appeal of Brickstone Realty Corp., supra (holding that zoning board abused its discretion by denying developers’ request for special land use exception based upon a finding of heightened traffic problems since the objectors “were required to produce more than lay expressions of concern for increased traffic in an already busy area.”); Bailey, supra (concluding that “the Board’s finding that the proposed expansion will increase traffic is not supported by substantial evidence of record” since “[tjhere is absolutely no evidence other than the speculative testimony of the neighbors that there will be an increase in traffic congestion.”). Absent such expert evidence and accident records proof, a zoning hearing board generally may not deny zoning relief due to traffic safety issues. See, e.g., Borough of Perkasie v. Moulton Builders, Inc., 850 A.2d 778, 782-783 (Pa. Cmwlth. 2004) (reversing denial of application for conditional use permit based upon adverse traffic effects, and holding that the local agency abused its discretion since “the record contains no opposing evidence in the form of traffic counts, accident records and expert evidence to establish that the use and location will have an adverse effect on traffic.”); Arduino v. Zoning Hearing Board of Borough of Dunmore, 2005 WL 4124885, at *12 (Lacka. Co. 2005) (without supporting expert testimony stating that the access drive’s sight distances presented a safety hazard, the record cannot contain evidence which a reasonable mind might accept as adequate to support the conclusion that a five foot deficiency in the left sight distance constituted a public safety threat); Carmadella v. Borough of Old Forge, 101 Lacka. Jur. 14, 21 (1999) (inasmuch as the objectors “failed to offer any traffic records or expert evidence to substantiate their arguments regarding traffic..., the record is completely devoid of substantial evidence to support the neighbors’ traffic concerns.”).

The recent Commonwealth Court decision in In re Jones, 29 A.3d 60 (Pa. Cm with. 2011) is rather instructive in this regard. In that case, a property owner requested a zoning variance to use his private residence as an insurance agency business, and during the ensuing zoning board hearing, several neighbors testified and objected to the variance request based upon “concerns about increased traffic, risks to children who live in the area,” “dangerous sight lines” at the intersection involved, and several “traffic accidents [that] recently took place” at that intersection. Id. at 62. The zoning board denied the variance application after finding that traffic and safety issues at the subject intersection “would be exacerbated by the proposed use.” Id.

The property owner appealed and argued “that the ZHB erred or abused its discretion by denying his request for a use variance based solely upon its finding that the proposed use would exacerbate traffic problems.” Id. at 63. The property owner asserted that the objectors’ “testimony regarding safety and traffic problems in the vicinity of the Property is mere speculation and conjecture and thus does not constitute evidence that is competent to support the ZHB’s findings.” Id. The Commonwealth Court agreed, and in reversing the ZHB’s denial, reasoned:

Objectors’ testimony does not demonstrate specific adverse effects that Jones’ proposed use will have on the neighborhood or that a significant increase in neighborhood traffic will result from the proposed use. We also observe that Objectors’ testimony is not augmented by expert opinions, traffic studies, or accident reports demonstrating any adverse effect of the proposed use on the neighborhood. For these reasons, Objectors’ testimony is not sufficient to support the ZHB’s finding that traffic and safety problems would be exacerbated by Jones’ proposed insurance agency use. [footnote omitted].
Because the ZHB’s decision to deny the variance due to an exacerbation of traffic and safety problems is unsupported by substantial evidence, we conclude that the ZHB abused its discretion by denying Jones’ application for a variance. Accordingly, we reverse.

Id. at 65.

The evidence of traffic congestion and safety issues in the case sub judice is far less than the traffic hazards proof that was deemed inadequate as a matter of law in In re Jones. In the pending zoning matter, the University introduced the only expert evidence concerning traffic issues, and that professional engineer testified that the proposed construction will “slightly improve” the existing sight distance triangles and will permit traffic to safely travel through the intersection of Linden Street and Jefferson Avenue. The University also presented the only accident records evidence which revealed the absence of any vehicle accidents at that intersection within the past five years. See In re Jones, 29 A.3d at 63 n. 5 (“The burden is on the property owner to establish why he or she is entitled to a variance.”). Furthermore, unlike In re Jones where objectors offered lay testimony relating to traffic congestion, pedestrian risks, dangerous sight lines and prior accidents, no individual testified in opposition to the University’s application or otherwise alleged that the new Rehabilitation Center Building would make “it less safe for both the students and the oncoming traffic” to use the intersection.

Zoning hearing boards have broad discretion in assessing the credibility of witnesses and the weight to be afforded their testimony, Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford, 34A.3d 286, 295 n. 9 (Pa. Cm with. 2011), but their discretion is circumscribed by the requirement that their findings must be “supported by substantial evidence,” which is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Geryville Materials, Inc. v. Planning Commission of Lower Milford Township, 2013 WL 3889211, at *2 n. 5 (Pa. Cmwlth. 2013). In the face of undisputed expert testimony that the proposed construction will not increase the existing, nonconforming sight distance triangles or cause any traffic safety issues, which expert proof was actually cited in the ZHB’s findings of fact Nos. 5 and 6, the ZHB denied the University’s dimensional variance request on the singular ground that the new Rehabilitation Center Building will make “it less safe” for motorists and pedestrians to utilize the intersection. The zoning hearing transcript does not contain any expert testimony, accident records analysis, or traffic count study to support that traffic and pedestrian safety finding. At the time of oral argument, the ZHB conceded that “the record is obviously devoid of any of that evidence.” (T.P. 8/5/13 at p. 48). As such, the ZHB’s determination that the proposed construction will jeopardize the safety of motorists and student pedestrians is not substantiated by the requisite proof. See In re Jones, supra; Bailey, supra.

Therefore, the ZHB’s traffic safety finding, which served as the only basis for its denial of the University’s dimensional variance application, is “not supported by substantial evidence in the record.” See Keener v. Rapho Township Zoning Hearing Board, 2013 WL 3929834, at*5 n. 8 (Pa. Cmwlth. 2013) (a zoning board abuses its discretion when its findings are not supported by substantial evidence in the record). Consequently, the ZHB abused its discretion by denying the University’s application for dimensional variances for three sight distance triangles, and the ZHB’s majority decision will therefore be reversed.

ORDER

And now, this 9th day of August, 2013, upon consideration of the “Notice of Zoning Appeal” filed by appellant, the University of Scranton, on July 3, 2013, the transcript of the Scranton City zoning hearing conducted on June 12, 2013, the memoranda of law submitted by the parties, and the oral argument of counsel on August 5, 2013, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The zoning appeal filed by appellant, the University of Scranton, is granted; and
2. The decision of the Zoning Hearing Board of the City of Scranton denying the University of Scranton’s application for three dimensional variances with respect to the “sight distance triangle” requirements of Article VIII, Section 803 .C.5 of the City of Scranton Zoning Ordinance is reversed.

      . Section 307.B(4) of the City of Scranton zoning ordinance sets forth the “Minimum Building Setback” regulations for a C-D zone, and states that there are no setback requirements (i.e., front yard, side yard, rear yard or any yard abutting a public street) for a principal and accessory structure in a C-D zone. (See Scranton, Pa., Zoning Ordinance art. III, §307.B(4) at p. 3-23 (1993)).

      . One ZHB member, who ultimately voted against the University’s application for a variance, questioned the project architect as to whether the University “considered] building this facility” on other University-owned property, and the architect replied that the physical therapy, occupation therapy and exercise science building had to be “contiguous” to McGurrin Hall and its Panuska College of Professional Studies since the services and clinics offered by those programs “are directly related” to each other. (ZHT 6/12/13 at pp. 20-21). According to Commonwealth Court precedent, the fact that the applicant for a dimensional variance owns other property on which it could construct the proposed building in conformity with the zoning requirements is not relevant to the merits of the variance request. “The availability of other property is not a factor that is relevant here, as the question of whether a [variance] hardship exists is one that is specific to the particular property at issue.” Schomaker v. Zoning Hearing Board of Borough of Franklin Park, 994 A.2d 1196, 1204 (Pa. Cmwlth. 2010), app. denied, 611 Pa. 671,27 A.3d 226 (2011).

      . In its brief, the ZHB hypothesizes that “[t]he Zoning Officer must have found the reconstruction of the nonconforming structure would increase severity or amount of the nonconformity or he would have permitted the new structure without Board approval.” (Docket entry no. 4 at pp. 3-4). There is no factual or evidentiary support in the record for such an assumption, and neither the zoning hearing transcript nor the ZHB’s written decision references a supposed determination by the zoning officer or any other municipal official that the proposed construction of the new Rehabilitation Center would increase the existing nonconformity. In fact, the only testimony presented on that issue confirmed that the dimensional footprint of the proposed structure “is actually better than the footprint of the existing building” and reduces “the severity of the present nonconformity.” (ZHT 6/12/13 atpp.13,15).

      . The Hertzberg standard has been described as “a lesser burden of proof,” Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105, 117 n. 16,834 A.2d 1104, 1111 n. 16 (2003), and “a more relaxed standard for a dimensional variance.” Bernotas, supra. The less stringent test set forth in Hertzberg is not limited to cases where a dimensional variance is being sought for a building of the same size as the existing structure, and to the contrary, applies equally to variance requests seeking to add space to the present building. Talkish v. Zoning Hearing Board of Harbor Creek Township, 738 A.2d 50, 53 (Pa. Cmwlth. 1999), app. dismissed, 567 Pa. 513, 788 A.2d 955 (2001). The ZHB presumably applied the less demanding standard in Hertzberg since it did not conclude that the University neglected to establish “unnecessary hardship.” See Mitchell, 838 A.2d at 829 (citing Hertzberg and concluding that “[w]here, as here, the evidence demonstrates that the only possible way of strictly complying with the [dimensional] requirement is through extensive reconstruction...of the building at a very high cost rendering it economically infeasible, unnecessary hardship for justifying a dimensional variance is shown.”).


author: HERRON, J.,

text:
    Perelman, Appeal from Register

      Andrew C. Eckert, for petitioner
    July 24, 2013
   HERRON, J.,

Introduction

The issue of Ruth Perelman’s domicile at the time of her death has been raised by the appeal of her husband, Raymond Perelman, from a decree of the Philadelphia Register of Wills that admitted into probate a July 28, 2010 will “that effectively” removed her husband as beneficiary of her residuary estate.” Raymond Perelman (“Raymond”) is challenging the jurisdiction of this court by asserting that his wife Ruth was a domiciliary of Palm Beach County, Florida, at the time of her death. The Perelmans’ son, Jeffrey, takes the contrary position. Jeffrey argues that Ruth’s domicile was in Philadelphia, Pennsylvania. A hearing was held on this issue, and both sides filed thorough post-trial briefs. For the reasons set forth below, based on controlling precedent and facts of record, this court finds that Ruth Perelman was a domiciliary of Philadelphia, Pennsylvania at the time of her death.

Factual Background

Ruth Perelman died on July 31, 2011 in Philadelphia, Pennsylvania. She was ninety years old and had been married to Raymond Perelman for seventy years. She was buried in Philadelphia in a mausoleum with Raymond’s father, mother, sister and brother.

The Perelmans had two sons: Ronald, who lives in New York, and Jeffrey, who lives in the Philadelphia suburbs. Throughout their marriage, the Perelmans maintained a residence in Pennsylvania. From 1950to 1970, they resided in Elkins Park, a Philadelphia suburb, where Raymond played a key role in building a synagogue designed by Frank Lloyd Wright, the Beth Shalom, and then served as a board member. Both sons made their Bar Mitzvahs in that congregation. In 1970, the Perelmans moved to a spacious 6,200 foot penthouse residence perched on the top of a building Raymond built on Rittenhouse Square. Raymond conceded that this is a preeminent address in Philadelphia which he picked by design. Ruth resided there until the day of her death. In the 1950’s she had been diagnosed with chronic lymphocytic leukemia (CLL) but she was never informed of this diagnosis due to the wishes of her husband and sons, all of whom believed that Ruth’s awareness of this diagnosis would have had deleterious health consequences.

Raymond was a highly successful businessman, who throughout his lifetime continued to work in the offices he maintained on the outskirts of Philadelphia in Bala Cynwd.

All of his “outside” professionals such as lawyers and accountants live in the greater Philadelphia area. Ruth and Raymond were also extraordinarily generous philanthropists. Between 1997 to 2009, the Perelmans contributed $74,697,109 to various charities, with 94.8% of those contributions to charities located in Pennsylvania, while 1.1 % of the contributions went to charities located in Florida. In addition, Raymond has pledged a $225 million contribution to the University of Pennsylvania medical center which will be named after both him and Ruth.

By 1990, the Perelmans also had a home in New Jersey. Around 1992, the Perelmans bought property in Palm Beach at 965 North Ocean Boulevard, which Raymond estimated was 6000 to 7000 square feet. In 1996, both Raymond and Ruth applied for the Florida homestead exemption. Ruth obtained a Florida driver’s license, which she subsequently turned in to obtain a Florida identification card in 2001. Ruth voted fifteen times in Florida; her last vote in 2010 was by absentee ballot. When Raymond filed the 1040 tax form, he listed the Florida address. The Perelmans did not, however, join a synagogue in Florida “because we were members of the synagogue here (Philadelphia suburb) which I helped build so I felt a loyalty to it and I remained a member of the Philadelphia synagogue.”

Raymond testified that each year, he and Ruth would travel to Florida, and they “made sure we spent six months and our six months ran from November 1st through May 1st.” In his mind, the law required a person to stay in Florida six months to qualify as a resident, and he did so for tax reasons because “[wjouldn’t it be stupid not to?” According to Raymond, Ruth relied on him for the accuracy of their tax forms. Raymond conceded that Ruth never discussed with him whether to make Florida their permanent home; rather, they just “did it.”

On April 30, 2009, Ruth broke her hip while in Philadelphia. She never returned to Florida. As Raymond noted, Ruth’s physicians were all in Philadelphia and since he was on the board of trustees of the hospital, she knew she would get special care. In particular, Ruth’s internist, Dr. Crooks, was extremely responsive and made frequent house calls. He saw Ruth as often as three times a week. Dr. Crooks began treating Ruth in the early 1990’s and remained her primary physician until her death on July 31, 2011. He deferred to her family’s instructions and never told her that she had CLL, which she lived with for over 50 years. As the chronic condition progressed, it became increasingly difficult for him to treat Ruth, who grew increasingly dependent upon him. From 2009 to the spring of 2010, Dr. Crooks believed it was acceptable for Ruth to travel by plane or helicopter. By the spring of 2010, Ruth became more disabled by the CLL, developing heart disease and diabetes. In March 2010, she developed pleural effusion and was hospitalized. A chest tube was inserted and then removed. In November 2010, however, the chest tube was reinserted permanently.

Ruth never worked outside the home and her family was extremely important to her. Both her husband and friends praised her as a devoted, loving mother and grandmother. The last years of her life, however, were filled with stress and anxiety over lawsuits that her husband Raymond and son Jeffrey filed against each other. In October 2009, Raymond filed a lawsuit against Jeffrey, asserting, inter alia, that he had breached their agreement in the transfer of business interests 20 years ago by failing to create a trust that would adequately benefit Jeffrey’s daughter Alison while excluding any interest to Jeffrey’s wife, Marsha. Shortly thereafter, an amended complaint was filed that joined Ruth as a plaintiff in Raymond’s suit against his son. Ex. R-46. Ruth acted quickly to remove herself from this litigation. She contacted attorney Marvin Lundy who wrote to Raymond’s attorney that “Ruth is also adamant that she has not retained you or any other member of your firm to represent her in any litigation whatsoever, especially against Jeffrey” and Ruth wished “that you withdraw the complaint which was filed against Jeffrey.” Ex. R-47. In mid-November 2009, the motion to amend the complaint to include Ruth as plaintiff against her son was withdrawn. Ex.R-52

On August 18, 2009, Raymond changed his will to remove Ruth as his personal fiduciary, replacing her with his son Ronald and granddaughter Debra Perelman. On that same day, he changed his charitable trusts to remove Ruth as co-trustee. His stated reason for removing her as co-trustee was his concern that Jeffrey was trying to influence his mother.

In November 2009, Raymond went to Florida for a couple of months without Ruth. Raymond maintains that he went on the advice of Ruth’s physician, Dr. Crooks, to avoid the stress incurred due to the family litigation. Raymond acknowledged that Ruth was physically capable of traveling to Florida at that time. According to the medical records of Dr. Crooks, Ruth’s reaction to Raymond’s departure was conflicted; on one hand she was relieved of the stress of his presence. On the other, she was devastated that he left her. Throughout Dr. Crooks’ records from April 12, 2009 until July 28, 2011, Ruth frequently confided on her sadness due to her estrangement from her husband and thoughts of divorce after so many years of marriage. In March 2011, the entry of appearance of Sandra Schultz Newman, on behalf of Raymond in the lawsuit against Jeffrey, caused extreme distress for Ruth, who was aware of a close personal relationship between her husband and Ms. Newman. Raymond, in contrast, consistently stated that he and Ruth “were happy together” but that his son, Jeffrey, tried to make them unhappy. When asked if Ruth had ever asked for separate households, he observed: “She would not and she could not live without me because we were inseparable. She could not live alone. She wasn’t capable or strong enough.” In the spring of 2011, however, Ruth retained a Philadelphia attorney, Michael Fingerman, for advice on obtaining a divorce from Raymond in Philadelphia. Ex. R-l 7.

She had also privately contacted the Schnader law firm to change her will, execute a revocable trust, and change her power of attorney on July 28, 2010 after several meetings during which she appeared unaccompanied, lucid, well-coiffed and coherent. With the July 28, 2010 will, Ruth removed Raymond as personal fiduciary and beneficiary. The primary beneficiaries of the will and revocable trust were her son, Jeffrey and granddaughter Alison. This was consistent with a concern Ruth had expressed to her friend Florence Marcus that Ruth “wanted Alison to be as comfortably well off-I don’t think it would be possible-but as Ronnie’s kids were.” At this time, Ruth also executed a new power of attorney and revoked a prior power of attorney that had appointed Raymond as her agent. To protect Ruth’s privacy and keep Raymond from seeing her check, the Schnader firm agreed not to bill Ruth for their services until after her death. In drafting Ruth’s will, no designation was given for Ruth’s domicile. The reason for this omission was to “give flexibility to allow the will to be probated in whatever jurisdiction she would live in at the time of her death” since she had residences in New Jersey, Pennsylvania and Florida. The situs of the trust Ruth executed was Pennsylvania. Ex. R-2 (Article Eleventh). When questioned as to Ruth’s intentions, Roy Steven Ross, the attorney who was the primary scrivener of this new will, agreed that Ruth had said she had no intention of going back to Florida. He noted that Ruth’s choice of executor, Judge Arlin Adams, would not have been able to serve in that capacity under Florida law because he was neither a Florida resident nor a family member. Nonetheless, Ruth wanted him to serve as personal fiduciary even after this issue was explained to her.

Procedural History

After Ruth’s death, Raymond filed a caveat with the Philadelphia Register of Wills which was subsequently withdrawn. By decree of the register of wills dated October 3, 2012, the July 28, 2010 will was admitted to probate in Philadelphia with letters testamentary granted to Jeffrey Perelman, as executor. Raymond filed an appeal to this court asserting lack of jurisdiction because Ruth had been domiciled with her husband in Florida. He also asserted that the July 28, 2010 will was invalid because procured through the undue influence of her son, Jeffrey. By a praecipe filed on February 22,2013, Raymond abandoned his claim of undue influence.

Litigation was also pursued in Florida over Ruth’s estate. On February 8, 2012, a circuit court judge in the fifteen judicial district in Palm Beach, probate division, issued an order that under Florida law, Ruth had died a domiciliary of Florida. Neither side, however, has raised this Florida order as being controlling or determinative. Pennsylvania courts have held, for instance, that where administration of a decedent’s estate is at issue, domicile is a jurisdictional prerequisite so that where domicile is claimed to be in Pennsylvania that threshold issue should be determined by a Pennsylvania court without regard to the ruling of a different state court. Pusey’s Estate, 321 Pa. 248, 269, 184 A. 844, 853 (1936), cert. denied 299 U.S. 572 (1936). Accord Lang Estate, 15 Fid. Rep.2d 46 (Phila. O.C. 1994)(overruling preliminary objections asserting that a Florida court ruling on domicile should be accorded full faith and credit). It is well established that neither “the Fourteenth Amendment nor the full faith and credit clause requires uniformity in the decisions of the courts of different states as to the place of domicil, where the exertion of state power is dependent upon domicil within its boundaries.” Worcester County Trust Co. v. Riley, 302 U.S. 292, 299 (1937). Since domicile would be a prerequisite for the exercise of jurisdiction over the estate at issue, this issue must be addressed anew in this proceeding.

Legal Analysis

The domicile of a person is “where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” In re Dorrance’s Estate, 309 Pa. 151, 173, 163 A. 303, 310 (1932), cert. denied 287 U.S. 660 (1932). As Raymond concedes, domicile is determined by the law of the forum, which in this case is Pennsylvania. See, e.g. Greenwood v. Hildebrand, 357 Pa. Super. 253, 259, 515 A.2d 963, 965 (1986), app. denied 515 Pa. 594, 528 A.2d 602 (1987). Determining a person’s domicile raises a mixed question of law and fact. Estate of Getz, 611 A.2d 778, 780, 148 Pa. Cmwlth. 393, 397 (1992). Once a domicile is acquired, it is “presumed to continue until it is shown to have been changed” with a burden of “clear and satisfactory proof.” Estate of Loudenslager, 430 Pa. 33, 38-39,240 A.2d 477, 479-80 (1968). The person asserting the change in domicile has that burden of proof. Id. To change one’s domicile, “there must be the 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.” Publicker’s Estate, 385 Pa. 403, 405-06, 123 A.2d 655, 658 (1956). Intentions alone cannot establish domicile. Instead, a person’s conduct is critical in establishing domicile. As a consequence, “a man cannot elect to make his home in one place for the general purposes of life, and another place for the purposes of taxation.” In re Dorrance s Estate, 309 Pa. at 166, 163 A. at 308.

While a person may have many residences, he can have only one legal domicile. In re Lesker, 377 Pa. 411, 416-17, 105 A2d 376, 379-80 (1954). The Perelmans had residences in three states: New Jersey, Pennsylvania and Florida. To determine Ruth’s domicile at the time of her death, it is necessary to focus on her intentions and conduct. This is complicated by her strained relationship with her husband. Raymond was a highly successful businessman, while Ruth was never employed outside the home. It would be easy to submerge her identity into his. In fact, Raymond argues that a husband and wife are presumed to have the same domicile, citing Obici’s Estate, 373 Pa. 567, 576, 97 A.2d 49, 53-54 (1953). That case is distinguishable. In Obici, the court concluded that testimony by interested relatives that a wife intended to separate from her husband did not establish her intent to change domicile from Virginia, where she had lived with her husband for 21 years, to Pennsylvania where she moved to be cared for by her sister after becoming ill. In fact, the Obici court emphasized: “Throughout the twenty-odd years of their married life, there appears no course of conduct to cause or justify any estrangement or separation.” Obici, 373 Pa. at 575-76, 97 A.2d at 53.

In the present case, however, the respondent has presented clear, convincing and disinterested evidence based on Ruth’s stated intentions and concrete actions that in the final two years of her life she was forced to assert her independence from her husband and cement her ties to her long-term home in Philadelphia. The record is clear that Ruth at no time uttered an explicit statement as to her domicile. She did not discuss this issue with her husband or physician, Dr. Crooks. Nor did she clarify this point for the lawyers who drafted her July 28, 2010 will. Her close friend Florence Marcus likewise testified that Ruth had never expressed whether she considered Florida or Philadelphia her home, though “it was just assumed by everybody that Philadelphia was her home. These were extra things. Atlantic City was an extra. Palm Beach was an extra.” Ex. R-36 at 29-30.

This lack of an explicit statement of domicile does not preclude a determination of whether Philadelphia or Palm Beach was Ruth’s home for the purposes of domicile. It is well established that “declarations alone of domicile are self-serving and insufficient; they must be followed by acts which are in accordance with the declarations.” Alburger v. Alburger, 138 Pa. Super. 339, 344, 10 A.2d 888, 890 (1940). Instead, it is therefore necessary to focus on her actions as to where she made her home.

For forty years until the day of her death, Ruth had lived in the same home in Philadelphia. Her social network of friends was in Philadelphia. As a generous philanthropist with her husband Raymond, the lion’s share of her contributions were directed to charities located in Philadelphia. While she began to spend winters in Palm Beach with her husband beginning in the 1990’s, she always returned to her same home on Rittenhouse Square. After April 2009, she refused to return to Florida. This refusal stemmed in part from her growing estrangement from her husband, and in part from her deteriorating health which made her more dependent on the unique medical connections she had established in Philadelphia.

Up until her death, Ruth remained lucid, and, as her friend Florence Marcus and attorney, Bruce Rosenfield, observed, she knew what she wanted. Ruth was a loving mother and wife who deeply valued her privacy and her family. The lawsuits between her husband and son Jeffrey and the resulting publicity caused her deep anxiety and stress. Even before the lawsuits were filed, she had expressed her resistance to Raymond’s attempt to control and dominate. The lawsuits between her husband and son, however, inspired Ruth to take concrete-albeit stealthy-actions to assert her independence.

In the winter of 2009-2010, Ruth did not travel to Florida with her husband despite her physician’s encouragement that she join her “estranged” husband. In June 2010, Ruth initiated a series of meetings with lawyers from the Schnader law firm to change her estate planning documents to omit her husband as beneficiary, fiduciary and agent under her power of attorney. She attended two meetings unaccompanied at the Schnader offices, where she asked questions while discussing her family and assets. After each meeting, revisions were made to the documents. Ruth executed a new will, trust agreement and power of attorney on July 28,2010 in her Rittenhouse home. Raymond was not provided for in her will except for references to personal and household items. He was not named executor. He was not named agent under her new power of attorney. The will did not specify a geographic domicile, though the situs of the trust is Pennsylvania. In naming Judge Adams as executor, she was informed that he would be unable to serve in Florida because he was neither a Florida resident nor a relative, but Ruth indicated that she had no intention of returning to that state.

Several months later, Sandra Schultz Newman made an entry of appearance in March 2011 on behalf of Raymond in his litigation with his son Jeffrey which greatly distressed Ruth. In the Spring of 2011, Ruth retained a divorce attorney. Ex. R-17. These concrete actions establish her independent spirit, which must be considered in determining her domicile and distinguish her actions from those of Raymond.

An extremely important bond between Ruth and Philadelphia was the excellent medical care that was available to her. In fact, beginning in the 1990’s she established a long-term doctor-patient relationship with Dr. Crooks, who was her primary physician until her death on July 31, 2011. Raymond testified that Ruth had been diagnosed with CLL in the 1950’s, but he had instructed her physicians not to reveal this diagnosis to her. Dr. Crooks yielded to this policy that had been adopted by his predecessor. He noted, however, that Ruth had lived with CLL for 50 years, which was unprecedented since the average survival rate is only ten years. The family made the right decision to spare Ruth this added anxiety, Dr. Crooks concluded, though it is not something that would be done today. According to Dr. Crooks, Ruth’s condition, and the efforts necessary to keep the CLL diagnosis from her as her condition deteriorated, created a special relationship. The medical records kept by Dr. Crooks document how increasingly crucial it was for Ruth to remain in Philadelphia.

After returning from Florida in April 2009, Ruth fell and broke her hip. She was admitted to Pennsylvania hospital on April 30, 2009 and released on May 6, 2009 Ex. R-21-3. Although Ruth’s hip eventually healed, at that point the CLL began to affect her organs. 3/21/13 N.T. at 19 (Dr. Crooks). Throughout this period until Ruth’s death in July 2011, Dr. Crooks met with Ruth frequently. He estimated that he saw her nearly every week, often making house calls that could last up to two hours. In her last year, Dr. Crooks made 58 house calls. 3/21/13 N.T. at 17. In March 2010, Ruth developed pleural effusion and was hospitalized so that a tube could be inserted and then removed from her chest. By November 2010, the tube had to be permanently reinserted. In addition to tending to her health issues, Dr. Crooks counseled her on the stress and anxiety arising from the family conflicts and litigation. Their chief topic of conversation was the legal battle between her husband Raymond and son Jeffrey: “Family was very important to her and I think particularly as this disagreement in the family became public, she was very, very upset.” 3/21/13 N.T. at 31 (Dr. Crooks). His notes indicate that Ruth spoke to him frequently about her estrangement, separation or divorce from her husband after 67 years which she found very distressing. In the fall of2009, Raymond went to Florida without Ruth. Ex. R-21-9. Although Dr. Crooks encouraged Ruth to go to Florida to see her “estranged” husband, she did not do so. Ruth’s friend, Florence Marcus, likewise, testified that Ruth had told her she wanted a divorce. Ex. R-36 at 33.

Dr. Crooks’ notes also reflect Ruth’s growing dependence on him and her increased anxiety whenever he went away on a trip. By June 2010, Ruth had become distraught over her failing health. In October 2010, Dr. Crooks was concerned about the pleural effusion Ruth had developed and her unawareness that she had CLL which rendered treatment more difficult. Although he raised the issue with Raymond of telling her that she had CLL, he did not agree. By November 25,2010, Ruth was on home oxygen and “very frustrated with her declining health.” In early December, Dr. Crooks and Ruth had a long talk about end of life and dying “which we have gone over in detail with her.” In July 2011, Ruth’s close friend Florence Marcus drove her from her Rittenhouse Square apartment to the University of Pennsylvania hospital where Ruth died.

In her declining health, Ruth’s attachment and reliance on the care she received from her doctor and the excellent medical facilities in Philadelphia strengthened her bond to that city. The Philadelphia area was where her close friends and various family members lived. The excellent care she received sustained her life. It was vital to her. There is no evidence whatsoever that Ruth at any time after April 2009 yearned to return to Florida or to leave her Philadelphia home.

Despite this compelling evidence that Ruth was domiciled in Philadelphia at the time of her death, the petitioner counters that Ruth’s domicile was in Florida. At the hearing, counsel for Raymond agreed that he had the burden of showing change of domicile, but in his brief he asserts that Ruth was domiciled in Florida as of 1996. Jeffrey’s position is more nuanced. Although he argues that Ruth never made Florida her home, he also maintains that at the time of her death Ruth was domiciled in Philadelphia because “[r]egardless of where Ruth may have been domiciled prior to 2009, it is undisputed that Ruth lived in Philadelphia continuously for more than two years before she died and did not go to Florida once during that time.” The main thrust of Jeffrey’s evidence focuses on the period after April 2009. The burden of showing this change of domicile is greater than required to show a continued domicile. Estate of Loundenslager, 430 Pa. 33,39,240 A.2d 477,480 (1968). But when all the evidence is distilled, Jeffrey presented clear, convincing and disinterested evidence that at the time of her death, Ruth was domiciled in Philadelphia.

To support his contention that Ruth was domiciled in Florida, Raymond emphasizes various other factors: Ruth and Raymond purchased their home in Palm Beach in 1992; they filed for the Florida Homestead Exemption in 1996; they registered to vote in Florida; they obtained a Florida driver’s license. Ruth voted in Florida fifteen times and obtained a Florida identification card in March 2001 after she stopped driving. In their joint federal tax returns beginning in 1996, Ruth and Raymond gave their home address as 965 North Ocean Boulevard, Palm Beach Florida.

Respondent Jeffrey Perelman urges that this paper trail of documentation was created by Raymond primarily for tax purposes and should not determine Ruth’s domicile. In support, he cites two landmark cases by the Pennsylvania Supreme Court: In re Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932) and Estate of Reighard, 381 Pa. 304, 113 A.2d 305 (1955). Dr. John Dorrance was a brilliant businessman who amassed a fortune as the head of Campbell Soup Company, a New Jersey corporation with offices in Camden, New Jersey. Up until 1925, Dorrance resided with his family at his home “Pomona Farms” in New Jersey. In 1925, he purchased a large estate, “Woodcrest,” in Pennsylvania. The Dorrance court concluded that at the time of his death, Dr. Dorrance had been domiciled in Pennsylvania despite his efforts on the advice of counsel to claim New Jersey as his domicile for tax advantages and estate planning purposes. Dorrance and his wife, for instance, executed an agreement that their residence would remain in New Jersey despite their occupancy of “Woodcrest” in Pennsylvania and that they would refrain from voting anywhere other than in New Jersey. 309 Pa. at 159, 163, 163 A. at 305, 307.

In analyzing the facts before it, the Dorrance court applied the two part test focusing on “physical presence in the place where domicile is alleged” and “intent to make that place the home of the party.” 309 Pa. at 173, 163 A. at 310. The mere expression of intent to claim a domicile, however, did not suffice. As the Dorrance court observed, on “the question of domicile less weight will be given to the party’s declaration than to his acts” with primary emphasis on “the evidence supplied by the daily life of the individual and his acts and conduct.” 309 Pa. at 169-170, 163 A. at 309 (citations omitted). In concluding that Dr. Dorrance was a domiciliary of Pennsylvania despite his expressed intention of claiming a New Jersey domicile, the court emphasized that he had resided at Woodcrest in Pennsylvania for 5 years prior to his death “purposely making his home in a neighborhood more congenial to his family and more suitable to his condition in life than the New Jersey location which he left.” 309 Pa. at 174, 163 A. at 311. In other words, “Woodcrest” was his home in fact to which the family always returned and which was considered his home by his friends and acquaintances.

In the subsequent case of Estate of Reighard, the Pennsylvania Supreme Court applied the principles set forth in Dorrance to facts more analogous to the instant case. The decedent, David Reighard, spent his winters in Florida. Even though Reighard placed Florida license plates on his car, claimed the Florida homestead exemption, declared himself a Florida resident to register to vote in that state, and paid Florida resident personal property taxes, Justice Musmanno concluded that “these incidents were but fluttering leaves of transitory expression in no way affecting the trunk of the domiciliary tree whose roots sunk deep in Pennsylvania soil.” Estate of Reighard, 381 Pa. 304, 308-09, 113 A.2d 305, 307 (1955). These formal expressions of intent to establish a Florida domicile for tax purposes were outweighed by Reighard’s continuous residence in Pennsylvania, his maintenance of a bank account in Pennsylvania rather than Florida, and his burial in Pennsylvania. In distinguishing between the factors that reflected Reighard’s intention to gain favorable tax treatment, and those to settle in a true home, the Reighard court emphasized: “Every person must have a domicile somewhere and a man cannot elect to make his home in one place for the general purposes of life, and in another place for the purposes of taxation.” Estate of Reighard, 381 Pa. at 308, 113 A.2dat 307 quoting Estate ofDorrance (emphasis supplied by Reighard court).

In a similar domicile case where a testator divided his time between Pennsylvania and Florida, the Commonwealth Court in Estate of Getz, 148 Pa. Cm with. 393, 611 A.2d 778 (1992) found a Pennsylvania domicile even where the decedent lived in Florida from October to May, obtained a Florida homestead exemption, registered his vehicle in Florida and registered to vote in Florida. The Getz court acknowledged that these acts were evidence of an intent to change domicile, but they were outweighed by the decedent’s burial in Pennsylvania, his listing of a Pennsylvania address on federal income tax returns, and the attesting of a Pennsylvania domicile in his will.

The overall significance of these Florida cases is that the factors Raymond emphasizes as establishing Ruth’s domicile in Florida-the homestead exemption, the Florida voting record, the Florida driver’s license or identification card-are not determinative but must be weighed in the broader, context of Ruth’s life and home decisions. This is particularly true where, as in this case, a strong-willed, financially astute husband-like Dorrance or Raymond Perelman-makes conscious decisions for tax purposes. In his testimony in various forums, Raymond has conceded that tax considerations influenced some of his residential decisions. Raymond testified before this court, for instance, that each November, he and Ruth traveled to Florida and did not return until May, admitting that this schedule was motivated by his understanding that “[i]f I wanted to take advantage ofthe tax situation, I had to follow the regulations for it so I did it,” noting “wouldn’t it be stupid not to?” When initially questioned at the court hearing whether one reason he pursued a Florida residence was to obtain the tax advantages of the homestead exception, Raymond denied this had been a motive. He was confronted, however, with his prior testimony before the Register of Wills in which he had cited the tax advantages and the homestead act as why his residence was in Florida. Moreover, Raymond’s accountants had prepared a chart of those tax advantages. In the January 20, 2012 Florida proceeding, he admitted that he had previously claimed New Jersey as a residence for tax reasons: “there was a time frame when I bought the house in New Jersey and the New Jersey state taxes was considered to be less than the Philadelphia. And since I owned a home there and we spent a lot of time there, I used New Jersey as a residence,” in order to save taxes. The record strongly suggests that decisions such as these were made by Raymond. He conceded, for instance, that Ruth did not play a role in the preparation of his tax returns; instead, “she looked to me.” The effect of those decisions on Raymond’s domicile is not at issue here. When weighed against the real concerns of Ruth’s life, however, they do not suffice to establish a Florida domicile for her.

The respondent presented clear, convincing, disinterested evidence that after April 2009, Ruth became estranged from her husband which caused her to deepen her ties to Philadelphia. In the winter of 2009-10, for instance, Raymond traveled to Florida, but Ruth did not, even though Raymond acknowledged that she had been physically capable of doing so. Another compelling factor in Ruth’s decision to live in Philadelphia was her need for the excellent medical care. As Raymond admitted, she preferred being in Philadelphia where her doctors were. Her friend, Florence Marcus, likewise testified that Ruth had told her that she could not go back to Florida because of her health. The notes of Dr. Crooks document her numerous calls and increasing dependence on him for both emotional support and medical care as her health deteriorated while her mind remained lucid. It is true, as petitioner asserts, that change of residence “for purposes of health or other unavoidable necessity will not result in loss of that domicile.” Dorrance Estate, 309 Pa. at 170, 163 A. at 309. Here, however, Ruth was not a passive patient who changed her residence late in life due to a medical emergency. Instead, throughout her life, she had established her network of medical resources where her long-term home was in Philadelphia. If, as petitioner argues, Palm Beach had been her true home, she would have created her medical support network there. She did not. In selecting to be in close proximity to her doctor, Ruth was exercising her own free will which is a critical consideration in determining domicile. In re Publicker’s Estate, 385 Pa. at 413, 123 A.2d at 661-62 (intent to remain in close proximity to physician immaterial if decedent exercised her own free will to remain in Philadelphia). This was not the case of a frail, elderly person who is removed from her longstanding home for care by a relative in another county. See, e.g., Estate of Loudenslager. 430 Pa. 33, 240 A.2d 477 (1968)(where decedent left Philadelphia for daughter’s home in Montgomery county due to frail health and then remained there for only 2 weeks, her domicile remained in Philadelphia). Ruth had lived in Philadelphia since 1970; she had been treated there by her long-term physician in Philadelphia since the early 1990’s; the bulk of her philanthropic contributions were directed to charities located in Philadelphia; her friends and family were near Philadelphia; she was buried in Philadelphia with other Perelman relatives. Based on the exercise of her free will, at the time of her death, Ruth Perelman’s domicile was in Philadelphia.

Conclusion

The focal point for the issue of Ruth Perelman’s domicile is on her actions and intentions. The petitioner presented just one, interested witness, her husband Raymond, who repeated the mantra that they had been happily married for 70 years and she could not live without him. The petitioners, in contrast, presented an array of disinterested, highly credible witnesses with nuanced insight into Ruth’s actions and intentions in response to her anguish over the litigation between her husband and son: her longtime friend, her primary physician of 20 years who maintained contemporaneous, disinterested notes, her stalwart lawyers at the Schnader firm who helped her write Raymond out of her will and power of attomey-and then delayed their billing so that he would not know what she had done. Based on this record, the respondents presented clear, convincing and disinterested evidence that Ruth had been a domiciliary of Philadelphia from at least April 2009 when she returned to her home on Rittenhouse Square, never to return to Florida or express any intent to do so.

      . 10/16/12 Raymond Perelman (hereinafter “Raymond”) petition, ¶24. This petition also claimed that Ruth’s will effectively removed her husband as a beneficiary of her tangible personal property.

      . 71/19/13 N.T. at 30-31, 62 & 66-67 (Raymond Perelman hereinafter “Raymond”); 3/19/13 N.T. at 252 (Jeffrey Perelman).

      . 3/19/13 N.T. at 58-59, 16-17 (Raymond)(“I built the apartment. I took the top floor and sold the rest of them underneath”). Id. at 59.

      . 3/19/13 N.T. at 32 (Raymond).

      . 3/19/13 N.T. at 37 & 67-68 (Raymond). A dispute arose as to Ruth’s address for her death certificate. When Raymond was the informant, the address was listed at Palm Beach. An amended death certificate with Jeffrey Perelman as the informant listed Ruth’s address as 1820 Rittenhouse Square. 3/19/13 N.T. at 37-38; exs. P-18 & P-19.

      . 3/19/13 N.T. at 82-85 (Raymond).

      . Ex. R-10; 3/19/13 N.T. at 76-78 (Raymond).

      . 3/19/13 N.T. at 14-15 (Raymond); ex. P-20 (deed).

      . Exs. P-1; P-5; P-7; P-29; 3/19/13 N.T. at 17-29 (Raymond).

      . 3/19/13 N.T. at 30 (Raymond).

      . 3/19/13 N.T. at 17 (Raymond). Their friend, Florence Marcus, testified in her deposition that the Perelmans always returned home to Philadelphia by April 15th for Ruth’s birthday. Ex. R-36 at 50.

      . 3/19/13 N.T. at 57 & 56 (Raymond).

      . 73/19/13 N.T. at 92 (Raymond).

      . 3/19/13 N.T. at 63 (Raymond).

      . 3/19/13 N.T. at 33 (Raymond); ex. R-21-3. Ruth was admitted to Pennsylvania Hospital on April 30,2009 and discharged on May 6,2009 for home physical and occupational therapy.

      . 3/19/13 N.T. at 33-34 (Raymond).

      . 3/21/13 N.T. at 15-16,21, 24-28 (Dr. Crooks): ex. R-21-29.

      . 3/19/13 N.T. at 38 (Raymond)(Ruth was a “fabulous wife, a wonderful mother, a wonderftil grandmother”); ex. R-36 at 45 (Florence Marcus)(Ruth “was a wonderful mother and a caring mother”).

      . Ruth’s closed friend Florence Marcus, for instance, characterized Ruth’s mental state during her final two years as “anguished,” nothing more particularly she was upset by the lawsuits of her husband and sons. Ex. R-36 at 26 & 31 (Florence Marcus).

      . Ex. R-64.

      . 3/19/13 N.T. at 100-03, 108, 113-114 (Raymond). See also ex. R-57; R-58; P-16.

      . 3/19/13 N.T. at 40 & 137-38 (Raymond).

      . Compare ex. R-21-10 (Ata 10/14/09 home visit, Ruth “is feeling better than she was, particularly if he is going to be going away”) with ex. R-21-24 (At a 1/9/10 home visit, Ruth is “under a great deal of stress from her husband leaving her after 67 years of marriage and some lawsuits between her children”).

      . See, e.g., ex. R-21-22 (At 12/22/09 home visit, Mrs. Perelman is “very stressed by the pending divorce from her husband of 67 years”).

      . See. e.g. ex. R-36 at 37 (Florence Marcus deposition).

      . 3/19/13 N.T. at 96 (Raymond).

      . 3/19/13 N.T. at 39 (Raymond).

      . Ex. R-37 at 13-17 (Rosenfield videotape deposition)(describing June 16, 2010 meeting with Ruth); 3/20/13 N.T. at 14-21 (Ross). Unaccompanied, Ruth met with Schnader lawyers to discuss changing her estate planning documents on June 7, 2010, June 16, 2010 and July 28,2010. 3/20/13 N.T. at 15-18 (Ross). Mr. Ross was the primary scrivener of these documents, exs. R-l, R-2 and R-3: 3/20/13 N.T. at 15 (Ross).

      . 10/16/12 Raymond Perelman petition, ¶¶ 4-7. Raymond asserts that in Ruth’s prior July 18, 1991 will, he had been the executor and primary beneficiary. Id. ¶5. Compare ex. R-l (July 28,2010 Will).

      . Ex. R-36 at 75 (Florence Marcus).

      . 3/20/13 N.T. at 27 (Ross).

      . Ex. R-33; 3/20/13 N.T. at 29-30 (Ross); ex. R-37 at 77-79 (Rosenfield).

      . 3/20/13 N.T. at 24 & 28 (Ross).

      . 3/20/13 N.T. at 24 (Ross).

      . 3/20/13 N.T. at 25 (Ross).

      . 10/16/12 Raymond Perelman Petition.

      . While petitioner references this Florida ruling, he does not argue that this court is bound by it. See 4/23/13 Raymond Perelman brief at 7-8.

      . 4/23/13 Raymond Perelman Brief at 9.

      . When asked “did Mrs. Perelman ever tell you that she wanted to make Florida her permanent home, “Raymond candidly replied: “We didn’t discuss that.” 3/19/13 N.T. at 63 (Raymond). Raymond did testify, moreover, that Ruth had told him that she preferred being where her doctors were-in Philadelphia. 3/21/13 N.T. at 74 (Raymond).

      . See, e.g., 3/20/13 N.T. at 23 (Ross)(no geographic reference was given in Ruth’s July 28,2010 will because “Mrs. Perelman did not know what her residence would be at the time of her death” although she had no intention of going back to Florida).

      . See, e.g. exs. R-36 at 24 (Florence Marcus deposition); R-37 at 26 (Bruce Rosenfield deposition)(“She knew what she wanted”).

      . R-21-02 (medical notes that Ruth “was upset and very distress (sic) and very concerned about his controlling and wanting to take charge of everything.”). This attempt to dominate came out not just in minor aspects of her life as restricting phone calls from friends after 8 p.m. but in such major ways as Raymond’s directive that her physician conceal her diagnosis of CLL. 3/21/13 N.T. at 16 & 32 (Dr. Crooks).

      . Ex. R-21-25 (January 20, 2010 Home Visit); 3/21/13 N.T. at 61 (Dr. Crooks). According to Florence Marcus, Ruth’s last winter in Florida had not been happy because she had nothing to do, and they weren’t going any place. Ex. R-36 at 37.

      . 3/20/13 N.T. at 13-30 (Ross).

        . See ex. R-5 (Entry of Appearance); 3/21/13 N.T. at 77 (Raymond) (testimony from the January 20,2013 Florida proceeding read into record without objection); ex. R-36 at 37 (Florence Marcus).

      . 3/21/11 N.T. at 15 (Dr. Crooks).

      . 3/19/13 N.T. at 32 (Raymond); 3/21/13 N.T. at 15-16 (Dr. Crooks).

      . 3/21/11 N.T. at 16 (Dr. Crooks).

      . 3/21/13 N.T. at 23-28 (Dr. Crooks).

      . See, e.g. ex. R-21-6 (9/1/09 Home Visit); ex. R-21-7 (9/17/09 Home Visit; discussed divorce; Ruth “does not want to live this way at 88 years of age”); ex. R-21-8 (9/25/09 Home Visit: three phone calls and 2 hour discussions with Ruth about separating from her husband); R-21-20 (12/16/09 Home Visit spoke of “her husband and their separation”); R-21-22 (12/23/09 Home Visit: Ruth “is very stressed by the pending divorce from her husband of 67 years...”); R-21-24 (1/9/10 Home Visit Ruth “is under a great deal of stress from her husband leaving her after 67 years of marriage”); R-21-26 (1/27/10 Home Visit); R-21-28 (2/12/10 Home Visit); R-21-55 (8/17/10 Home Visit); R-21-78 (6/1/11 Home Visit: Ruth “is very serious conflict with her husband and even after 70 years of marriage, there is talk of divorce”).

      . 3/19/13 N.T. at 39-40 (Raymond); Ex. R-21-9.

      . 3/21/13 N.T. at 61 (Dr. Crooks); Ex. R-21-25 (1/20/10 Home Visit).

      . Ex. R-21-34 (4/3/10 Home Visit: “Mrs. Perelman was very anxious about me leaving town”); R-21-37 (5/2/10 Home Visit: Ruth is “was anxious that I was leaving town”); R-21-38 (5/10/10 Home Visit “I spoke to Mrs. Perelman last week twice from England”); R-21-47 (7/7/10 Home Visit: Ruth called Dr. Crooks 5 times over the weekend due to concern about her cough); R-21-53 (8/9/10 Home Visit: Ruth called Dr. Crooks “over 5 times with great distress over the weekend”); ex. R-21-56 (8/19/10 Home Visit: 8 phone calls from Ruth’s sons, her husband visiting doctor sent by her son, her nurses and Ruth); ex. R-21-59 (8/26/10 Home Visit: Ruth is concerned about Dr. Crooks going away); R-21-60 (9/2/2010 Home Visit: Ruth “has called me every day since last Wednesday. I had spoken to her on Thursday, Friday, Saturday, Monday and Wednesday....); ex. R-21-63 (10/4/10 Home Visit: Ruth demanded that Dr. Crooks see her at home tonight); R-21-72 (1/20/11 Home Visit: Ruth called Dr. Crooks every day this week); R-21-75 (3/8/11 Home Visit: Dr. Crooks spoke to Ruth “three times last week while I was away”); R-21-79 (6/23/11 Home Visit: Ruth called three times while Dr. Crooks was in England)

      ~Ex. R-21-46 (6/30/10: Home Visit).

      . Ex. R-21-64 (10/21/10 Office Visit); Ex. R-21-67 (11/25/10 Home Visit)

      . Ex. R-21-67 (11/25/10 Home Visit).

      . Ex. R-21-69 (12/3/10 Office Visit).

      . The Court: There has been very little discussion about burden. Since I see you rising, Mr. Eckert, I assume you are accepting the burden?
      Counsel for petitioner: Correct.
      The Court: And that is to say the burden of showing a change of domicile?
      Counsel for petitioner: Correct.
      3/19/13 N.T. at 8.

      . See 4/23/13 Raymond Perelman brief at 2 (“Mrs. Perelman remained a Florida domiciliary from 1996 util her death....”)..

      . 4/23/13 Jeffrey Perelman brief at 2.

      . 4/23/13 Raymond brief at 1-5; see exs. P-1; P-8; P-5: P-7; & P-29.

      . 73/19/13 N.T. at 57 (Raymond).

      . 3/19/13 N.T. at 44-48 (Raymond); ex. P-4 (Chart of tax savings).

      . 3/21/2013 N.T. at 80 (testimony of Raymond Perelman at the January 20, 2012 Florida proceeding read into the record by Mr. Smith without objection)

      . 3/21/13 N.T. at 76 (November 16, 2011 Raymond Perelman deposition at 72 read into record without objection).

      . 3/21/13 N.T. at 74 (November 16, 2011 Raymond Perelman deposition at 37 read into the record without objection)

      . Ex. R36 at 29 (Florence Marcus)

      . 3/19/13 N.T. at 38,41, 96, 153 (Raymond).

      . See, e.g., ex. R-37 (testimony of Bruce Rosenfeld); Ex. R-82 (deposition of Judge Arlin Adams); 3/20/13 N.T. at 13-36 (Roy Steven Ross). Raymond brought a legal action against Judge Adams and sought to have Dr. Crooks removed from his faculty position. 3/19/13 N.T. at 136 & 167 (Raymond).