D'Auria v. Liposky

• Decision Date: 16 January 1962
• Parties: Mathilda P. D'AURIA, Plaintiff, v. Andrew E. LIPOSKY and Mary Liposky, his Wife, Defendants.
• Court: Pennsylvania Superior Court

177 A.2d 133

197 Pa.Super. 271

Mathilda P. D'AURIA, Plaintiff, v. Andrew E. LIPOSKY and Mary Liposky, his Wife, Defendants.

Superior Court of Pennsylvania.

January 16, 1962.

Anthony Cavalcante, Uniontown, for appellants.

Lewis M. D'Auria, Connellsville, Thomas A. Waggoner, Uniontown for appellee.

Before ERVIN Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

This is an appeal from an order overruling the defendants' motions for a new trial or for judgment n.o.v. following a trial in which the jury awarded the plaintiff $2,000 in her suit to recover sums totalling approximately $7,000 which she allegedly earned and turned over to the defendants while living in their home, upon the defendants' agreement to return them to her when she left their home or married.

1. The motion for judgment n.o.v. was properly overruled. In support of her claim, the plaintiff testified that she and her younger sister were taken away from their natural parents as neglected children in November, 1937, when she was eight years old, and placed with the defendants with whom she continued to live until 1953, when, at the age of twenty-four, she moved to Cleveland, Ohio, and was married.

Plaintiff testified that she began working in a store, which the defendants operated without profit, when she was ten or eleven years old and that she continued to help out in the store as long as she lived with them. She also dusted and cleaned around the house, washed and ironed clothes and made deliveries of milk from the defendants' cows. After she was graduated from high school in 1947, at the age of eighteen, the plaintiff took a job, and thereafter she continued to work and receive weekly pay checks or unemployment compensation checks until she moved to Ohio. When she was not working, she helped out in the store.

Plaintiff testified that when she brought her first pay check home in July, 1947, the wife defendant, in her husband's presence, told her to hand over the check, that she would save the money for plaintiff until she left home or got married, and that the work which the plaintiff did in the store and around the house would take care of her room and board. Thereafter, the plaintiff turned over all of her checks to the defendants who returned $8.00 to her each week for spending money. Plaintiff testified that she never received any of the money retained by the defendants and that, when she asked for it in April, 1953, the defendants refused to give it to her.

The defendants denied making any such agreement with the plaintiff.

As the able trial judge charged the jury, the parties were free to make any arrangements they wished concerning the disposition of the plaintiff's earnings. The plaintiff's evidence if believed, was sufficient to support a substantial verdict, and the entry of judgment n.o.v. would have been improper.

2. The defendants seek a new trial because of the action of the court below in ruling as a matter of law that they did not stand in loco parentis to the plaintiff. The court charged, in effect, that the defendants had the burden of establishing that the plaintiff had made a gift of her earnings to the defendants and refused defendants' request to charge that the jury should determine from the testimony whether the loco parentis relationship existed or to give them appropriate instructions applicable to the rights of persons standing in loco parentis to receive the services and earnings of their unemancipated children in the absence of any agreement or understanding to pay for such services or to permit the child to keep his or her own earnings. See 67 C.J.S. Parent and Child §§ 72, 74.

The court based its refusal to charge on this relationship upon the ground that it was a foster home placement and not a parent and child relationship. In its opinion, the court en banc held that the relationship was one of public law under the supervision of the Juvenile Court in which the welfare of the child is the dominant consideration, and that the welfare agency which placed the plaintiff or the court could substitute a new home at any time if conditions required it, and that under such public law relationship no private rights vested in defendants which would entitle them to the plaintiff's earnings.

Under the cases discussed below, the fact of placement is not conclusive against the relationship. Although the fact of such placement may weigh against a finding that the defendants stood in loco parentis to the plaintiff, yet the ultimate determination of this question depends upon a consideration of all the facts, and a full review of the testimony is necessary before we can decide whether the evidence of the relationship was so meager that there was nothing to submit to the jury.

Prior to the placement, defendants had requested to be listed for such placements. They did not have any particular children in mind and did not know the plaintiff or her sister at the time of the placement. The children were given no choice or selection as to the home in which they would be placed.

The husband defendant was not gainfully employed at the time of the placement, and the defendants knew they would receive financial assistance for keeping the children. The public authorities paid the defendants $16.00 each month for both children until June 1, 1942, when the defendants began to receive a monthly allotment in the same amount from the pay of their natural father, who was in military service. This allotment was increased to $31.00 monthly beginning November 1, 1942, and continued until July 31, 1945, when the father was discharged from the service.

When asked whether or not the defendants were paid for her keep, the plaintiff testified: 'They were paid as far as I know till we were about eighteen years, and then from my father's army pay he would send [an] allotment.' Although the defendants' counsel made a motion to strike this testimony, he did not renew the motion after the court deferred ruling upon it, and he permitted the following testimony, elicited during the plaintiff's cross-examination, to remain in the record:

THE COURT:

'Q. When did the County quit paying for the two children, if you know?

'A. I am not sure but I think they pay until you are eighteen, I am not positive.'

The plaintiff herself testified that the woman who brought her to the defendants' home subsequently visited her only 'once in awhile', 'not too often', that the defendants placed her in a private high school after her freshman year and paid for her tuition, that they bought clothes for her and provided her with everything she needed, and that her natural father died in January, 1951.

She testified that her younger sister 'was a little bolder' and kept the pay which she earned from an outside job obtained shortly before she was married in 1951. The plaintiff never discussed the matter of her own pay with the defendants after she turned over her first pay check never asked the defendants the amount of her 'savings', and when she would sign and hand over her pay check, the wife defendant would 'cash it or do whatever she did with it or pay a bill'. Finally, the plaintiff testified that she used the words 'Mother' and 'Dad' in addressing the defendants.

The defendants testified that they had one natural daughter and could not have any more children of their own, that they took the children to raise as their own and to 'make company' for their own daughter, and that they could have adopted the children but wanted to let them use their own name. They further testified that the children had uncles and aunts who would not accept them, that their natural mother visited them only once, that their natural father was under the influence of alcohol when he visited the children and they refused to speak to him, and that the father 'wouldn't give you no answer * * * he would agree with anything you said about the children'. There also was evidence that the payments the defendants received were insufficient for the children's support, that the defendants kept them in the 'best clothes', took them on trips and gave them money whenever they needed it. The defendants testified that they obtained the plaintiff's first job for her, that they merely accepted and never demanded the plaintiff's check, that her checks, like those of the husband defendant, were put in a common fund that the plaintiff's earnings were never kept separate and that they were expended with those of the defendant husband during the period the...