author: GRAY, J.,

text:
    North Branch Transfer, Inc. v. Bower

      Douglas Englelman, for plaintiff J. Bower, Jr.

      Jack Felix, for defendant M. Bower.

      Mark Taylor, for defendant P. Bower.

      Patricia Shipman, for intervenor Estate of J. Bower, Sr.
    February 14, 2014-
   GRAY, J.,

VERDICT and ORDER

Before the court is the issue of ownership and percentage of ownership of North Branch Transfer, Inc. (“North Branch”). In the interest of justice, the parties agreed to initially try that one issue first. A non-jury trial was scheduled in this matter on January 29,2014 at which time the parties agreed to submit the matter on stipulated facts placed on the record as well as arguments and briefs. The parties were granted additional time to submit supplemental briefs and/or to request further argument in this matter. The time for requesting further argument or submission of additional memoranda has passed. After review of the arguments, stipulated facts, and trial briefs and supplemental memoranda of law submitted in this matter, the court enters the following verdict, order and opinion.

The parties agree that the question ownership and percentage of ownership of North Branch turns on whether John Bower, Sr. gave his shares of North Branch to John Bower Jr. before or upon his death by executing a document entitled “Shareholders Meeting” (“Document”). That document states that on March 29, 2011 John Sr. called a special meeting for the shareholders of North Branch to inform the members that he would “temporarily be away for a few weeks on vacation” and that he resigned his position as president in the event that he did not return in a “timely fashion.” That document quotes John Bower Sr. as stating “If for any unforeseen reason that I become ill beyond comprehension and only in the event of my death do I relinquish all my shares of North Branch Transfer to the officers and directors of the company in equal parts. The officers and directors of this company are: John Bower Jr., Brenda Bower, and Jonathon Bower.” The document states that all the officers and directors accepted the motion. The document is signed by John Bower Sr., John Bower Jr., Brenda Bower, and Jonathon Bower.

“The requirements for a gift are intent, delivery and acceptance in all cases.” In re Estate of Sipe, 492 Pa. 125, 30 (Pa. 1980), citing, Cost v. Caletri, 394 A.2d 513, 517, n.10 (1978); Wagner v. Wagner, 353 A.2d 819 (1976) (further citations omitted). “Donative intent is the intention to make an immediate gift.” Wagner v. Wagner, 353 A.2d 819 (1976), citing, Parkhurst Estate, 167 A.2d 476, 478 (1961). “The essence of delivery of a gift is relinquishment by the donor of dominion and control of the subject matter of the gift.” Wagner, 353 A.2d at 822, quoting, Brown, personal property § 39 (1955). The clearest form of delivery of a gift of corporate shares is registration of the shares in the name of the donee on the stock ledger of the company coupled with physical delivery to the donee of stock certificates in the name of the done representing the shares so registered.” Wagner, 353 A.2d at 822-823. However, “less formal modes of delivery have been sufficient.” Id. Acceptance may be presumed absent express renunciation. In re Estate of Sipe, 492 Pa. 125, 131 (Pa. 1980). “A gift causa mortis differs from other gifts only in that it is made when the donor believes he is about to die, and is revocable should he survive.” Titusville Trust Co. v. Johnson, 375 Pa. 493, 497-498 (Pa. 1953). To establish a gift mortis causa, the donor must have “believed he was going to die, that he was likely to die soon; and death did actually ensue within a reasonable time thereafter.” Titusville Trust Co., 375 Pa. at 499. The donor’s state of mind may be inferred from the circumstances. Id.

Applying these principles to the facts of this case, this court concludes that John Bower, Jr. failed to produce sufficient evidence of donative intent and delivery for a valid inter-vivos gift. The document does not establish the donor’s intent to make an immediate gift. It explicitly conditioned the relinquishment of John Bower, Sr.’s shares “only upon the event of his death.” Moreover, there was insufficient evidence of delivery. The document conditioned the relinquishment of the shares upon John Bower, Sr.’s death. The document suggests that John Bower, Sr. continued to retain control over his shares and had he returned safely from his vacation, he would not have been required to execute any further documents to evidence such control. Another factor weighing slightly in favor insufficient delivery is that there was no delivery of stock certificates or registration of shares to evidence delivery, though that factor is not determinative because North Branch did not appear to always follow conventional methods regarding stock certificates. But there was no tangible delivery to evidence relinquishment of John Bower, Sr., immediate control of the stock. In sum, the court finds that there was insufficient evidence of donative intent and delivery for an inter-vivos gift.

This court further concludes that John Bower, Jr. failed to produce sufficient evidence for a gift in contemplation of death {mortis causa). The court finds that John Bower, Sr. did not believe he was about to die or was likely to die soon. This finding is supported by the language John Bower, Sr. used. JohnBower, Sr. used the term “unforeseen reason” as a preface to the relinquishment of his shares. He also resigned from his position “[i]n the event I should not return in a timely fashion[.]” That language suggests the possibility of a prolonged vacation, or typical travel concerns, but not imminent death. Furthermore the stipulated facts do not give rise to an inference that John Bower, Sr. believed he was about to die or was likely to die soon. Those facts were that John Bower, Sr. suffered from medical conditions but did not die from any health condition known to him at the time of the meeting. John Bower, Sr. died as a result of an unexpected vehicle accident. There was not a stipulation that would allow the court to find that John Bower, Sr. suffered from an imminently life-threatening illness known to him at the time the document was executed. Even had there been the requisite belief of impending death, there was still insufficient evidence of donative intent and delivery, as was previously discussed. Therefore, this court concludes that there was insufficient evidence that the document constituted a gift in contemplation of death.

Lastly, the parties invited guidance on a question not directly before this court to assist in possible resolution of the remaining claims set for trial. The question is whether the document is testamentary and whether it could be probated even though the estate of John Bower, Sr. has been open for two years. The court believes that it cannot provide such an advisory opinion or guidance, especially since the matter has not been fully briefed by the parties and jurisdiction is an issue.

ORDER

And now, this 14th day of February, 2014, it is ordered and directed that verdict and judgment is entered as follows.

1. John Bower, Jr. claim for an inter vivos gift or a gift mortis causa of John Bower,

Sr.’s shares in North Branch is denied.

2. Therefore, based upon the stipulation of parties in conjunction with the rulings by this court, the court finds the percentage of ownership of North Branch is as follows: John Bower, Jr. 25%, Penelope Bower, 25%, and the estate of John Bower, Sr., 50%; This decision is without prejudice to John Bower, Jr.’s potential claim against the estate asserting that the document is testamentary and eligible for probate.

3. This matter is hereby placed on this court’s April 2014 trial term to litigate any remaining claims. A pretrial is scheduled for the 7th day of March, 2014, at 10:00 a.m. in Courtroom #3. Any motions in limine must be filed by March 3,2014, with supporting legal memoranda. Any reply with supporting memoranda shall be filed by March 14, 2014. A courtesy copy should be provided to the undersigned. Argument on any motions filed will be scheduled to be heard March 26, 2014, between 1:30 and 5:00 p.m. in Courtroom #3.

4. Attorney Mark Taylor’s motion to withdraw is hereby granted. Counsel is directed to serve this order upon Penelope Bower and provide the court and opposing counsel with her current address for service of future documents.

      . The parties agreed that no consideration was provided in exchange for the transfer of shares and that the issue would turn on whether the John Sr. made a gift or whether the document constituted a valid testamentary document.

      . “[W]hen the gift is prompted by the belief of the donor that his death is impending, and is made as a provision for the donee, if death ensures, it is distinguished from the ordinary gift inter vivos and called donatio mortis causa.” Titusville Trust Co. v. Johnson, 375 Pa. 493, 498 (Pa. 1953).


source: Caselaw Access Project

author: TUNNELL, J.,

license: Public Domain

text:
    Murray v. Pa. Dept. of Transportation

      Edward N. Flail, for appellant.

      Christopher Duerr, for appellee.
    February 14, 2014
   TUNNELL, J.,

— -After receiving notice that licensee Alan Wade Murray had refused to submit to a chemical test, DOT mailed him a notice dated March 18, 2013 advising him that his driving privilege was suspended for a period of one year effective April 22, 2013 pursuant to §1547(b)(l)(ii) of the Vehicle Code. This section provides that when any person placed under arrest for driving under the influence (DUI) is requested to submit to a chemical test and refuses to do so, DOT shall suspend the person’s operating privilege for a period, in this case, of one year. Murray filed a timely appeal to this court.

A de novo hearing was scheduled for the date of August 8, 2013. The court granted DOT’S request for a continuance, however, and the matter was rescheduled and heard on October 10, 2013. At the conclusion of the hearing, the court denied the appeal and reinstated Murray’s suspension. The licensee has filed a timely appeal on the basis of a “Concise Statement of errors”, which the court now addresses.

In the early morning hours of February 16, 2013, Officer Jeffrey Yankanich of the East Brandywine Township Police Department observed that a car operated by defendant Murray was crossing over the white sideline and left turn lanes. He pulled Murray over. The officer testified at the hearing that he smelled an odor of alcohol on Murray’s breath, that Murray had glassy and bloodshot eyes and that Murray admitted he had had a couple of drinks. (N.T., p. 5). The officer administered certain field tests including a finger-to-nose and a walk and turn, which Murray failed. He administered a portable breath test to Murray which produced a blood alcohol level of .192. Id. He arrested the licensee for suspicion of driving under the influence and transported him to the Brandywine Hospital. A phlebotomist was summoned. The officer testified that he read form DL-26 verbatim to the licensee.

Form DL-26, which was admitted as part of DOT’S exhibit C-l, includes the following statements:

“It is my duty as a police officer to inform you of the following:
1. You are under arrest for driving under the influence of alcohol or a controlled substance in violation of Section 3802 of the vehicle code.
2.1 am requesting that you submit to a chemical test of (Blood)_(blood, breath or mine. Officer chooses the chemical test).
3. If you refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months. If you previously refused a chemical test or were previously convicted of driving under the influence, you will be suspended for up to 18 months. In addition, if you refuse to submit to the chemical test, and you are convicted of violating Section 3802(a) (1) (relating to impaired driving) of the vehicle code, because of your refusal, you will be subject to more severe penalties set forth in Section 3804(c) (relating to penalties) of the vehicle code. These are the same penalties that would be imposed if you were convicted of driving with the highest rate of alcohol, which include, a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.
4. You have no right to speak with an attorney or anyone else before deciding whether to submit to testing. If you request to speak with an attorney or anyone else after being provided these warnings or you remain silent when asked to submit to chemical testing, you will have refused the test.

Adjacent to the statement “I have been advised of the above,” the licensee signed his name and dated it. Officer Yankanich requested that Murray submit to a blood sample, affirming that the licensee had no right to talk to an attorney. Id. The licensee responded that “he did not want to supply a blood sample.” (N.T., p. 6).

The DL-26 form contains the implied consent warnings required by §1547 of the vehicle code, 75 Pa. C.S. §1547, pursuant to the Supreme Court’s decision in Dept. of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). Officer Yankanich stated, and the licensee later agreed when he took the stand in his own case, that he was confused by the statement that he could not contact his attorney. (N.T., p. 13). Despite his requests to do so, the officer said “no.” (N.T., p. 23). Murray testified that he did not understand the document and thought that he had to sign it. This was why he wanted to talk to his attorney; he said “I wasn’t fully aware of my legal rights” at that time. (N.T., p. 21). He assumed that he had been arrested for the offense of DUI following the administration of the field tests and the portable breath test. He testified “I was confused on my rights because I thought I was already arrested.” (N.T., p. 24). Officer Yankanich testified that “Murray was intoxicated at the time and was confused that he could not contact his attorney after I read it off the DL-26 form.” (N.T., p. 13). On cross examination, the officer was asked several times inasmuch as they were only thirty minutes into a two-hour window to draw the blood, “what would it have cost the Commonwealth to make a phone call?” (N.T., pp. 13-14).

The licensee raises several issues on appeal. His first assignment of error is that the court abused its discretion in granting a continuance on August 8, 2013 at the Commonwealth’s request based on the Commonwealth’s contention that it thought this was a proceeding on the nunc pro tunc portion of Murray’s petition, not the hearing on the appeal itself. Murray complains that the posture of the case was quite clear.

The trial court is vested with broad discretion in the determination of whether a request for a continuance should be granted and the appellate courts do not disturb such a decision unless an abuse of that discretion is apparent. Baysmore v. Brownstein, 771 A.2d 54 (Pa. Super. 2001). In this respect, an abuse of discretion is more than just an error in judgment; on appeal, a trial court will not be found to have abused such discretion unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias or ill will. Baysmore, supra. The granting of the continuance or the refusal to grant such continuance even when that constitutes a dismissal is exclusively within the discretion of the trial court. Swoyer v. Comm. Dept. of Transp., 142 Pa. Cmwlth. 1, 599 A.2d 710 (1990), app. den., 527 Pa. 659, 593 A.2d 428, (1991), cert. den., 502 U.S. 921, 116 L.Ed.2d 273, 112 S.Ct. 332 (1991). In this case, the trial court balanced the relative equities between the parties and decided to grant the Commonwealth a continuance. This was neither manifestly unreasonable, nor the result of any partiality.

Within the vehicle code, the implied consent law provides that every person who drives, operates or is in actual physical control of a motor vehicle is deemed to have given his or her consent to the withdrawal of a sample of breath, blood or urine at the request of the police officer if that person is arrested for driving under the influence (DUI), 75 Pa. C.S. § 1547(a). While a driver has the statutory right to refuse to submit to testing, the exercise of that right comes with a price — a one-year suspension of his or her operator’s privilege. It is provided that the officer must inform the driver that his operator’s privileges will be suspended upon refusal to submit to chemical testing. Since drivers are often impaired, the standard is not a “knowing and intelligent” decision, but a “knowing and conscience” decision to refuse. It is not the duty of the police officer to explain the various sanctions available under the given law to an licensee so as to give the individual an opportunity to decide whether it is “worth it” to violate the law. It is sufficient for the police officer to inform a licensee that he or she will be in violation of the law and will be penalized for that violation if he or she should fail to accede to the officer’s request for a chemical test.

Here the licensee asserts that the court erred in determining that DOT met its burden because he only sought to clarify his rights and duties and did not intend to stall the chemical testing, because there was plenty of time for him to make a brief call to his attorney which would not have affected his blood alcohol level in any way, and because if he had reached his attorney, the attorney would have told him to submit to the test. The court was not unsympathetic to these assertions. It determined that Murray was confused and was not stalling. Even though the court entertained personal misgivings, it concluded that, as a common pleas court, it was bound to follow the law and enforce it.

The Commonwealth Court has recognized that licensees often fail to readily appreciate the difference between the civil suspension for failure to submit to testing, and the penalties imposed following conviction for DUI. Nevertheless, the Commonwealth Court has firmly held that the DL-26 form does not generate confusion, that it adequately and accurately informs a licensee that a request for counsel will be treated as a refusal for purposes of a license suspension, and contains sufficient information upon which a licensee can base a decision as to whether or not to submit to testing. Garner v. Dept. of Transp., Bureau of Driver Licensing, 879 A.2d 327 (Pa. Cmwlth. 2005). Furthermore, the appellate courts have long held that police officers are not required to see whether the licensee will ultimately change his mind. See, e.g., Broadbelt v. Dept. of Transp., Bureau of Driver Licensing, 903 A.2d 636 (Pa. Cmwlth. 2006). Time is of the essence not only due to the volatile nature of the evidence to be obtained, but also due to the public interest in ascertaining violations of 75 Pa. C.S. §3731 (DUI) which is so compelling as to justify a very strict application of the law. Dept. of Transp., Bureau of Traffic Safety v. Wroblewski, 65 Pa. Cmwlth. 333, 442 A.2d 407 (1982). In that case, the licensee insisted on waiting for his attorney before submitting to a test. This was deemed a refusal to take the test. Although the attorney arrived a few minutes later and the licensee agreed to take the test, the officer replied that it was too late. The trial court sustained the licensee’s appeal. Upon further appeal by DOT, the Commonwealth Court reversed and reinstated the suspension under the foregoing principles. See also, Dept. of Transp., Bureau of Driver Licensing v. Tomczak, 132 Pa. Cmwlth. 38, 571 A.2d 1104 (1990).

Appellate review is limited to determining whether the findings of fact are supported by competent evidence, or whether the trial court committed an error of law or an abuse of discretion in reaching its decision. Piasecki v. Dept. of Transp., Bureau of Driver Licensing, 6 A.3d 1067, 1070 (Pa. Cmwlth. 2010). Stancavage v. Dept. of Transp., Bureau of Driver Licensing, 986 A.2d 895 (Pa. Cmwlth. 2009). However, it has been held that whether a licensee’s conduct constitutes a refusal to submit to chemical testing is a question of law. Hudson v. Dept. of Transp., Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Cmwlth. 2003). The courts have consistently held in addressing this issue that “anything substantially less than an unqualified, unequivocal assent” to submit to testing constitutes a refusal to do so. Dept. of Transp. v. Renwick, 543 Pa. 122, 131, 669 A.2d 934, 938 (1996), McKenna v. Dept. of Transp., Bureau of Driver Licensing, 72 A.3d 294 (Pa. Cmwlth. 2013). As the above review of the evidence adduced at the hearing demonstrates, it is quite sufficient to support the determination that this was a refusal on Murray’s part. Ultimately, Murray’s lament is a familiar story, with nothing novel to it. Although he stated that he was not “fully aware” of his legal rights, he was told everything by the police officer required by law, and Murray signed his name in affirmation of that fact.

Murray also raises two constitutional challenges on appeal. First, he contends that the trial court erred in failing to find that his automatic placement into the highest level of intoxication “under Section 1547(2)(ii) through 75 Pa. C.S.A. § 3802(c)” because of his refusal to submit to chemical testing is a “violation of his rights under the Constitution of the United States of America and the Constitution of the Commonwealth of Pennsylvania.” Second, Murray argues that the trial court erred in failing to find that the denial of his “right to contact counsel” prior to refusing chemical testing arises to a violation of the Constitutions of the United States and this Commonwealth. Although Murray does not identify which provisions of the respective constitutions or which of his constitutional rights were implicated by the events in question, his “brief in support of appeal” submitted to the trial court prior to the hearing suggests that (1) he views his placement into the highest level of intoxication as an “arbitrary standard” and (2) that he believes a constitutional right to “contact counsel” was denied by Pennsylvania’s Implied Consent Law.

Pennsylvania courts have long held that when reviewing a constitutional challenge of a statute, the judiciary must accord a strong presumption of constitutionality to the acts of the legislature as a coequal branch of government. Commonwealth v. Balog, 672 A.2d 319 (Pa. Super. 1996). There exists a judicial presumption that branches of government take seriously their constitutional oaths. See 1 Pa.C.S. § 1922(3) (“In ascertaining the intention of the general assembly in the enactment of a statute the ... presumption [is] [t]hat the general assembly does not intend to violate the Constitution of the United States or of this Commonwealth”); Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383, 393 (2005) In order to overcome this presumption, the person challenging the constitutionality of a statute has the heavy burden of demonstrating that the statute clearly, palpably and plainly violates the Constitution. Id. (citing Commonwealth v. Stock, 499 A.2d 308, 311-12 (Pa. Super. 1985)). As the Pennsylvania Superior Court has stated, “[t] his is no easy task. Commonwealth v. Kitchen, 814 A.2d 209, 212 (Pa. Super. 2002).

Murray’s constitutional challenge to the placement of a person into the highest level of intoxication when they refuse a chemical test is based solely upon the recent United States Supreme Court decision in Missouri v. McNeely, 185 L.Ed.2d. 696, 133 S.Ct. 1552 (2013). His reliance on McNeely, however, is misplaced. In McNeely, the defendant was prosecuted for driving while intoxicated and during the proceedings moved to suppress results of a warrantless blood test. Id. After being stopped by a police officer for speeding and crossing the centerline, the defendant declined a breath test, was arrested and taken to the hospital for blood testing, which he also refused. The officer never attempted to secure a warrant and directed a lab technician to take a sample. Id. at 1557. In contrast, this statutory proceeding and appeal deal only with Murray’s violation of Pennsylvania’s Implied Consent Law, not the criminal matter of operating a vehicle while intoxicated or the warrant requirement for nonconsensual blood testing. McNeely is inapplicable to the facts of the present case.

Moreover, the Supreme Court’s decision in McNeely acknowledged the validity of the implied consent laws. The McNeely Court in its opinion acknowledged:

States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the state, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense.... Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most states allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.

McNeely, 133 S.Ct. at 1566.

Additionally, the Superior Court in Commonwealth v. McCoy, denied a similar constitutional challenge when it held that the “High Rate of Alcohol” classification for penalty purposes where there was an accident resulting in boldly injury did not violate equal protection guarantees. 895 A.2d 18 (Pa. Super. 2006), aff’d 601 Pa. 540, 975 A.2d 588 (2009). In McCoy, the defendant argued that because under the statute two drivers with the same blood alcohol level could be treated differently depending on whether or not there was an accident and the same license suspension could be imposed where there was no blood alcohol result, whether a person refused to take a chemical test or if they were never asked equal protection rights are violated. Id. at 34. In analyzing the argument, the Superior Court first noted that the case “does not involve a fundamental right or suspect class and does not involve an important right or sensitive classification.” Id. Therefore, the inquiry “rests upon whether there is a rationale basis for the classification.” Id. The Superior Court concluded:

The legislature may have concluded that where there is no BAC result, it is more likely than not due to a person’s refusal to submit to the test.... The legislature did not act unreasonably by failing to give a DUI offender the benefit of the doubt, instead ascribing the highest penalties in these instances, since the offender assumed the risk by driving while under the influence of drugs or alcohol.

Id.

Murray has failed to demonstrate, as required, that the Pennsylvania Implied Consent Law clearly, palpably and plainly violates any constitutional rights.

As for the second constitutional challenge, Murray acknowledges in his concise statement that “he could not be represented by an attorney.” In order to overcome this obstacle, he attempts to create a distinction between the “right to counsel” and the “right to contact counsel” to clarify one’s rights and duties. (Concise statement, at t4(a)). There is no difference. One’s rights regarding counsel are clearly stated in the DL-26 and have been addressed by the Supreme Court of Pennsylvania.

On further appeal, in Commonwealth of Pennsylvania v. McCoy, 601 Pa. 540, 591 (2009), the Supreme Court of Pennsylvania held as follows:

Submission to a chemical test upon being stopped for suspected DUI is an evidence-gathering circumstance, prior to the filing of any formal adversarial judicial proceedings, and as such does not constitute a critical stage for purposes of the right to counsel. There is no sixth amendment or article I, § 9 right to counsel prior to submission to a chemical test pursuant to a DUI stop.

The right to counsel as contemplated in McCoy, and the numerous other cases in this Commonwealth with similar holdings, is no different from the right to “contact” counsel.

Whether you call it the “right to counsel” or the “right to contact counsel” the idea is the same: a party is not entitled to consult with counsel to seek legal advice, or “clarification” as Murray calls it, prior to submission to a chemical test.

An appropriate order follows.

ORDER

And now, this 14th day of February, 2014, the appeal filed in the above-referenced matter is denied and the suspension shall be reinstated.

      . Hon. Mark L. Tunnell was assigned to this case after the appeal was filed.


text:
    Hafer v. Anadarko E&P Company L.P.

      Marc S. Drier, for plaintiffs.

      Andrea E. Hammel, for defendant.
    January 27, 2014-
   GRAY, J.,

ORDER

Issued Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)

The plaintiffs filed their concise statement of matters complained of on appeal on January 15, 2014. This court issues the following order pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). Plaintiffs’ concise statement of matters complained of an appeal is as follows.

The trial court erred in granting summary judgment for the defendant, where the written promise at issue, to exercise the extension option by a specified date, did not alter the “integrated” lease; where the defendant, by its predecessor, had admitted the intent to include that term; and where if the parol evidence rule did apply, the pleadings implicitly raised the “fraud, accident or mistake” exception to the parol evidence rule.

This matter arises out of an oil and gas lease executed on May 16,2006 (“Lease”). On December 4,2013, this court entered summary judgment in favor of the defendant after concluding that the Lease did not require a payment of $2500 per acre on or by August 13,2011. For the purposes of this appeal, this court relies upon its opinion and order entered on December 4, 2013, and respectfully requests our Superior Court to affirm this order. However, this court also respectfully provides the following in response to the matters raised by plaintiffs.

First, this court cannot agree that mandating the exercise of the extension “option” would not alter the Lease. It would remove the option to pay $2500 per acre to extend the term and instead make it mandatory that both the payment is made and that the term is extended. That would impose an absolute requirement to pay $67,775 for an extension even if defendants would rather elect not to extend the Lease. It would also provide a 5 year difference as to when the payment must be made. This court believes that mandating such a payment significantly alters the Lease, particularly in light of paragraph 17 of the Lease provides that the Lease itself contains all of the agreements and understandings of the parties to the Lease.

Second, this court cannot agree that plaintiffs raised or preserved the issue of “fraud, accident or mistake.” Plaintiffs filed a complaint in assumpsit, which contained no separate counts and no mention of fraud, accident or mistake. Plaintiffs’ response and briefing on the motion for summary judgment did not mention fraud, accident or mistake. This court believes that plaintiffs did not raise the issue of fraud, accident or mistake and that this court has not considered those issues or made any ruling on them. As such, this court believes those issues have been waived. See, e.g., Harber Philadelphia Ctr. City Office v. LPCI, 764 A.2d 1100, 1105 (Pa. Super. Ct. 2000), citing, Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

For these reasons, and those stated in this court’s order and opinion of December 6, 2013, this court respectfully requests that the Superior Court affirm.


author: LASH, J.,

text:
    Rotundo v. Jones

      Robert T. Ullman, for plaintiff.

      David S. Sobotka, for defendant.
    January 27, 2014
   LASH, J.,

— The plaintiff, Yvette Andrea Rotundo, (hereinafter “Rotundo”), has appealed this court’s order entered November 13, 2013, dismissing the above-captioned divorce action based on the court’s finding that the parties were never married. The issue of marriage status was raised by defendant, Patrick Bradley Jones, (hereinafter “Jones”), in a counterclaim to the divorce action, requesting declaratory judgment relief pursuant to 23 Pa.C.S.A §3306.

Rotundo claimed that the parties entered into a common law marriage on May 12, 1996, when, with the intention of becoming husband and wife, the parties exchanged words for that purpose. Rotundo also alleged the existence of the marriage in her divorce complaint, although in the complaint, she set forth that: “The parties were married under Pennsylvania Common Law not later than March 19, 2003, at which time [Jones] presented [Rotundo] with a ring before witnesses including the couple’s three children, affirming their marital status as husband and wife.” Jones denies entering into a common law marriage with Rotundo on May 12,1996, March 19,2003, or at any other time. After hearing held on November 1, 2013, the court entered its order of November 13, 2013 dismissing the divorce complaint, finding that the parties were never married, Rotundo having failed to meet her burden that a marriage contract exists.

The doctrine of common law marriage, once valid in Pennsylvania, has been abolished, although Pennsylvania continues to recognize common law marriages entered into before January 1, 2005. This court notes, however, that this recognition is provided reluctantly, as marriages without a ceremony present a “fruitful source of perjury and fraud.” Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1019, 552 Pa. 253, 261 (1998).

In Staudenmayer, the Pennsylvania Supreme Court set forth what is required to create a common law marriage:

A common law marriage™5 can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that. Commonwealth v. Gorby, 527 Pa. 98, 110, 588 A.2d 902, 907 (1991). Regarding this requirement for an exchange of words in the present tense, this court has noted:
FN5. Black’s defines “common law marriage” as:
One not solemnized in the ordinary way (i.e. non-ceremonial) but created by an agreement to marry, followed by cohabitation. A consummated agreement to marry, between persons legally capable of making marriage contract, per verba de praesenti, followed by cohabitation. Such marriage requires a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.
Black’s Law Dictionary 251 (6th ed. 1979).
[I]t is too often forgotten that a common law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words-not in futuro or in postea, but-in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife.
Estate of Manfredi, 399 Pa. [285] at 291, 159 A.2d [697] at 700 (citations omitted). The common law marriage contract does not require any specific form of words, and all that is essential is proof of an agreement to enter into the legal relationship of marriage at the present time. Estate of Gavula, 490 Pa. 535, 540, 417 A.2d 168, 171 (1980).

Staudenmayer, 714 A.2d at 1020.

Claims of common law marriage are to be reviewed by the court with “great scrutiny.” Where, as here, the parties are available to testify regarding “verba in praesenti,” the exchange of words in the present tense for the purpose of establishing the relationship of husband and wife, the burden of proof rests with the party claiming the common law marriage to produce clear and convincing evidence of said exchange of words. Id., A.2d at pp. 1020 and 1021.

In support of her claim, Rotundo testified that an exchange of words in the present tense did take place, occurring on Mother’s Day, May 12, 1996. (N.T. p. 8). She states that on that date, the parties were together with their two (2) very young children, viewing real property that they had recently agreed to purchase. Ms. Rotundo testifies:

...And I was talking about the fact that we were buying this home together, and our relationship — the commitment that we were making to one another.
And I said to [Jones], you know, now that we are buying this house do you think that we should go forward and have a more formal ceremony as far as the marriage? And he turned and he looked at me and grabbed me around my waist, and he looked at me — and he just had that — he has this charming little face, and he said buying this house is a very big commitment for me. And he said, I am not taking this lightly. He said as far as I am concerned, you and I are married, and I am your husband, and you are my wife, and I am committed to nobody else but you.
And I looked at him, and I kind of got cute about it because that was the first time that I heard him call me — refer to me as his wife, at least to my face. He had been introducing me as his wife prior to that. But I looked at him, and I said I am committed to you, and I am your wife, and, yes, you are my husband. [N.T. pp. 12-13],

Later on that same day, Jones presented Rotundo with a Mother’s Day card which featured preprinted material, including, among other things, the statement: “I love you, my wife.” (N.T. p.14, Rotundo’s Exhibit No. 1).

For his part, Jones denied the existence of the common law marriage. His testimonial denials present the position that he never formed the intent to marry Rotundo and never stated the requisite words of present intent. He never considered Rotundo to be his wife, nor held her out to third parties as owning that status.

This court found both parties’ testimony to be self-serving and of questionable credibility. One point of fact compromising Rotundo’s position that a marriage took place on May 12, 1996 was the language set forth in her divorce complaint. The complaint, which Rotundo admits was drafted by her attorney in accordance with information provided by her and which was verified by her, sets forth in paragraph 4:

4. The parties were married under Pennsylvania Common Law not later than March 19, 2003, at which time [Jones] presented [Rotundo] with a ring before witnesses including the couple’s three children, affirming their marital status as husband and wife.

In attempting to explain this inconsistency, Rotundo testified that on March 19, 2003, while having domestic difficulties and wanting to “reinforce the fact that we were married,” she received a ring from Jones. She goes on to state:

[Jones] brought it for me, and it was the evening of this day that he presented it. He got down on his hands (sic) and he said I present to you this ring. It is a ring that I was never able to provide you before. It represents our marriage and our commitment to each other as a family. And all of my kids were there, and my oldest one was jumping up and down, clapping because she thought that it was exciting. And I have the ring. I am wearing it now. (N.T. p. 29).

Rotundo testified that she was under “extreme duress” at the time she filed the divorce complaint. She testified she did not want to file for a divorce but did so because she felt threatened that she was about to be “thrown out” of the parties’ home through a partition action. According to Rotundo, her attorney advised her to file the divorce action to stop the partition action. She agreed but was unable to remember the exact date of the common law marriage, (N.T. p. 33), so chose to rely upon the date of the “ring ceremony.”

On this issue, the court questioned Rotundo:

THE COURT: Did you advise your counsel that, you know, you were married, but it could have been May 1996 or it could have been as late as 2003?
THE WITNESS: I did say that. I mean I told...this whole time in my life when this all occurred, was a horrible time for me, and I was scared, and I was afraid that I would be kicked out of my house on a partition action.... I went into see [counsel], and I told her what was happening, and this divorce complaint was filed because I was afraid that he would come back and file a partition.... And I — he told me that I could pretty much be court ordered out of my home. And so, you know, I didn’t have time to like — I didn’t have time to get all of my eggs in my basket and think.
I knew that words were spoken, I couldn’t exactly remember the date. I did remember the ring because this was something that I found right away. But there is a long history here. It is not just a black and white, as this is being presented. (N.T. p. 35-36).

The import is that Rotundo, at the time of the filing of the divorce complaint, was willing to accept one of two dates for the common law marriage, and decided to rely on the March 19, 2003 date as a fallback position because of her inability to recall the earlier date, and because she could better corroborate the 2003 date. In essence, what she stated to this court was: “I was married on May 12, 1996 and words of present intent were exchanged, but at the time Jones was threatening to have me removed from the house, I was unable to remember the date of the marriage so I alleged in the divorce complaint a date I thought I could prove, March 19, 2003, even though the marriage was sometime prior to that date.” While it is true that some people are unable to remember the date of their marriage, this pragmatic approach, while possibly serving her immediate concerns, contradicted her claim of conviction that she was married on May 19, 1996.

In a similar vein was her testimony regarding the failure to fill out a marriage date on her child support complaint filed on April 10, 2013. In response to the question: “Did you fill in a date of marriage when you filed this?” she stated: “Apparently not. I filled this out on my own. I didn’t have anybody guiding me on what to do here.” (N.T. p. 21). A person truly married should not need the advice of counsel or some other third party to advise her on how to respond to a question about the date of her marriage.

The parties provided testimony from friends and relatives and documentation for the purpose of corroborating their position. The testimony of the friends and relatives provided little guidance. With the exception of her father and to some extent the parties’ son, Rotundo’s witnesses were able to provide only general information, based on assumptions they reached from the fact that the parties were residing together, had children together, and in some ways acted in a manner consistent with that of a husband and a wife. Likewise, Jones’ witnesses were unable to provide anything conclusive.

The other evidence, however, documentation and discussions on actions taken by the parties, supported Jones’ position. As stated, there were the averments set forth in the divorce complaint and the child support documentation, both containing statements from Rotundo which were inconsistent with her position that the parties entered into a common law marriage on May 12, 1996. Additionally, there was the deed for the property purchased by the parties, the deed being executed on May 24,1996, after Rotundo’s purported date for the marriage. The deed sets forth that the parties are owners “as joint tenants with right of survivorship and not as tenants in common.” (Jones’ Exhibit 2). In speaking on the reasons why the parties were listed as joint tenants with the right of survivorship, Rotundo stated:

...We had concerns that we were in a committed relationship, but we were not — we didn’t have a marriage certificate. We wanted to be sure when we learned about tenants in common that meant that if something happened to one of his, his half would go into an estate.... I was concerned about if something happened to one of us, that we wouldn’t get the house. We explained to them that we were in a common law, committed relationship, and that is the advice they gave us was to write it up like that. (N.T. 172-173).

Rotundo’s stated motive for the designation of joint tenants with right of survivorship is consistent with a plan for two single people having joint ownership of real property and desiring that should one party pass away, the other would receive full and sole ownership by operation of law, a circumstance that would not take place if the designation was as tenants in common. It, however, is not consistent with a married couple entered into joint ownership for real property, for then the designation would be tenancy by the entireties.

Further, in 2010, the parties refinanced the jointly held residence. The supporting documentation for the refinancing included a notation that Jones’ marriage status was “single.” Although Rotundo testified that she did not recall ever viewing this documentation, she does admit that her signature appears on the signature affidavit, and was entered in the presence of a notary public. (N.T. pp. 190-195; Jones’ Exhibit No. 4).

The parties’ federal tax returns are also inconsistent with Rotundo’s position. The parties did not file joint tax returns as husband and wife, rather each filed as “head of household” or as “single.” (N.T. p. 190, 230; Jones’ Exhibit No. 7). The Internal Revenue Service publications set forth that to be able to claim “head of household,” you have to be “unmarried” which, in pertinent part, means the parties would be single and unmarried, or if married, were living apart for the last six (6) months of the tax year.

Another inconsistency appears when Rotundo, in an attempted support of her position, points out that Jones had listed her as a “spouse” on his employee health care plan. (See for example, Rotundo Exhibit No. 6, Application For Employment/Change). This document, however, is contradictory on its face, for while it does list Rotundo as a spouse, it also lists Jones as “single.” (N.T. pp. 110-115). Further, Rotundo admitted that she was first listed as a “spouse” on Jones’ health insurance in 1992 and 1993, a time when both parties agree that they were not married. (N.T. p. 179). Rotundo stated: “I knew that in order for me to obtain health insurance I had to be listed as a spouse.” (N.T. p. 180). Thus, it is apparent that Rotundo, and for that matter Jones, were willing to hold themselves out as married, even though they were not married, when it assisted their financial agenda. Another example occurred in 1995, when the parties represented themselves as married to St. Ignatius School. Rotundo states: “We wanted to emulate that we were married, and a married couple so we used [Joneses] name. Especially being in a Catholic school.” [N.T. p. 183]. (Emphasis supplied.)

As is apparent, Rotundo’s evidence fell far short of the “clear and convincing” standard required to establish a common law marriage. A better categorization of her evidence would be muddy, unconvincing, and at times, audacious. While Jones, therefore, prevailed on the within motion, this court must state that some of his actions were likewise troubling. Jones, as well as Rotundo, misrepresented to Jones’ health care provider and to a Catholic school. They filed tax returns, which may be called into question. These parties are prime examples on why it was sound to abolish the doctrine of common law marriage in Pennsylvania. In PNC Bank Corporation v. W.C.A.B., 831 A.2d 1269, 1281 (Pa.Cmwlth. 2003), the Pennsylvania Commonwealth Court drives home this point:

Finally, the conclusion seems inescapable that recognizing as married only those who have duly recorded their union pursuant to the Marriage Law will greatly reduce the need for litigation to determine marital status. Even where litigation is necessary, it will obviate the need for intensive fact inquiries into the details of parties’ relationships and greatly decrease the opportunity to present the sort of fraudulent and perjurious claims our Supreme Court, and others, have repeatedly lamented. In hearing cases such as this, we have been struck by the tendency of litigants in these matters to view common law marriage as something rather like a legal raincoat they can put on and take off as changing circumstances dictate. We see records in which couples have told one side of the family that they were married and the other side that they were not, depending upon what each collection of relatives might approve. Other couples may swear in applying for benefits that they are man and wife, but file tax returns averring under penalty of perjury that they are single. One attorney in oral argument, when asked how he could explain affidavits to the IRS inconsistent with the testimony of his client in the litigation then before the court, replied matter-of-factly that he assumed it lowered their tax liability. What is truly astonishing is not that parties take inconsistent positions to gain advantage, but that they seem to see nothing particularly inappropriate in their chameleon-like behavior. We must conclude that this court can no longer place its imprimatur on a rule which seems to be a breeding ground for such conduct and its attendant disrespect for the law itself.

This court respectfully requests Your Honorable Court affirm this court’s order of November 13, 2003, and deny the appeal of Yvette Andrea Rotundo.

      . As the existence of a valid marriage is a fundamental requirement to processing an action in divorce, the issue raised is one of subject matter jurisdiction. The issue of subject matter jurisdiction can be raised by either party or the court at any time. Bernhard v. Bernhard, 668 A.2d 546, 548, 447 Pa. Super. 118, 123-24 (1995). Accordingly, the fact that the issue was raised through a counterclaim rather than through a preliminary objection is not fatal.

      . 23 Pa.C.S.A. § 1103 sets forth that: “No common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1,2005, invalid.”

      . In cases when one party is unavailable to testify, the court permits a rebuttable presumption in favor of a common law marriage if the party asserting the marriage can establish constant cohabitation and a reputation of marriage, “which is not partial or divided but is sought in general.” Staudenmayer, 714 A.2d at pp. 1020-21. This rebuttable presumption does not apply here.

      . See for example, Internal Revenue Service Instructions 2012, under “Filing Status.”