Consentino v. Vittoria
| Decision Date | 05 January 1959 |
| Citation | 147 A.2d 839,394 Pa. 538 |
| Parties | Palmerino CONSENTINO and Carmella Consentino, Appellants, v. Francesca Pecchio VITTORIA, Executrix of the Estate of Carmine Pecchio. |
| Court | Pennsylvania Supreme Court |
James E. Rowley, Ralph E. Smith, Myron E. Rowley, Rowley & Smith, Aliquippa, for appellants.
Eugene A. Caputo, Ambridge, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, and COHEN, JJ.
This is an appeal from the action of the court below in refusing to remove a compulsory nonsuit entered against the appellants, Palmerino and Carmella Consentino, in an assumpsit action against Frances Vittoria, executrix of the estate of Carmine Pecchio, to recover for nursing and housekeeping services allegedly rendered by Mrs. Consentino to the decedent Pecchio during his lifetime. 1
Carmine Pecchio, a native of Italy, resided in Ambridge, Pa., and had been acquainted with appellants during most of the time that he had been a resident of that community. On May 30, 1952, he went to live with appellants as a roomer, paying them $20 per month as room rent, which he continued to pay up until the time he moved to a new residence. At the time that he went to live with the appellants, Pecchio was unable to work, and was apparently partially crippled with arthritis and was suffering from some type of intestinal disorder. He continued to reside with appellants until March 6, 1954, when the appellee, his daughter, a recent arrival fom Italy, took him to other quarters. Pecchio died on July 12, 1954, approximately four months after he had left appellants' home. Appellants' claim is for nursing and other services performed for Pecchio during the period of his residence with them. Appellants made no claim nor demand for payment during decedent's lifetime.
Appellants argue that the facts pleaded in their complaint and established at trial were sufficient to permit a recovery on a quantum meruit basis and that the court below erred in entering a nonsuit. It is also contended that the court improperly refused to admit into evidence certain paragraphs of the complaint.
It is almost axiomatic that on an appeal from the refusal of the court below to take off a compulsory nonsuit 'we consider the evidence, and all reasonable inferences therefrom in the light most favorable to appellant.' Gatens v. Vrabel, 393 Pa. 155, 158, 142 A.2d 287, 288. However, even when viewed in this most favorable light, and assuming, arguendo, that after appellants' failure to prove an express contract, the complaint would support a recovery in quantum meruit, the evidence produced by appellants to prove their claim is not sufficient to warrant a recovery even upon a theory of quantum meruit.
It is evident from an examination of the record, and, in fact, admitted by appellee that Mrs. Consentino did perform numerous compensable services for decedent during the period in question. However, the evidence is woefully inadequate to support appellants' claim.
In this type of case, where a claim for service allegedly rendered to a decedent during his lifetime is not made until after the decedent's death, and no demand was ever made upon him while alive, although there was ample time and opportunity to do so, the claimant has a heavy burden to demonstrate by clear and convincing evidence that payment was not made for the services by the decedent during his lifetime. In re Burr's Estate, 381 Pa. 547, 113 A.2d 712; In re Sanders' Estate, 370 Pa. 208, 87 A.2d 923; In re Braden's Estate, 363 Pa. 42, 68 A.2d 734; In re Mooney's Estate, 328 Pa. 273, 194 A. 893; In re Gilbraith's Estate, 270 Pa. 288, 113 A. 361; In re Monson's Estate, 160 Pa.Super. 631, 53 A.2d 909. As we stated in In re Mooney's Estate, supra, 328 Pa. at page 274, 194 A. at page 894: In Braden Estate, supra, 363 Pa. at page 45, 68 A.2d at page 735, in discussing the quality of evidence required to sustain a claim of this nature, we said: 'In respect to the contention that the furnishing of a room and of board and care to Lizzie Braden and her acceptance of the same during her lifetime created an implied contract, and that her estate should pay a reasonable amount by way of compensation, and that the complainants should be permitted to recover on a quantum meruit basis, what this court held in [In re] Gilbraith's Estate, 270 Pa. 288, 113 A. 361, in negativing such a claim is apposite here. In that case we said, quoting from the syllabi: 'In claims for board and nursing, the presumption is that the services were actually paid for periodically, exactly as is the rule in the case of servants' wages; and this presumption cannot be overcome by vague and uncertain testimony. Claims against a dead man's estate, which might have been made against him while living, are always the subject of just suspicion, and require clear proof before they will be allowed. * * * Where a claim is made for board and nursing covering a period of years, and it is not shown to have been made while the services were being rendered, nor during a later period when decedent was living elsewhere, nor until after the death of the alleged debtor, the burden of proof to overcome the presumption is greatly increased. The presumption is not overcome by evidence of loose declarations made by decedent during his lifetime. * * * No recovery can be had against a decedent's estate for services rendered in expectation of a legacy.'' (Emphasis supplied)
In the instant case, appellants relied principally on the testimony of four of the eleven witnesses through whom they attempted to establish their claim. These witnesses testified that decedent stated to them on various occasions that: 2 'He told me that he was going to will the home on Maplewood Avenue to Mrs. Consentino for taking care of [him]'; 3 ; 4 and 'He told me that he deducted from his Income Tax $150.00 for month as expenses paid to Mrs. Consentino, that he gave--wanted to give her the house down on First Street, and Mrs. Consentino did not want it at that time, and told him to wait 'till later." 5 ...
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