Dillon, In re

Decision Date07 May 1996
Citation449 Pa.Super. 559,674 A.2d 735
PartiesIn re Martin T. DILLON, Deceased. Appeal of Patricia SCHER, Michael Dillon, and Suzanne R. Dillon.
CourtPennsylvania Superior Court

Thomas A. Sprague, Philadelphia, for appellant.

Peter G. Loftus, Waverly, for Lawrence Dillon, participating party.

John M. Popilock, Deputy Attorney General, Harrisburg, for Commonwealth, participating party.

Before KELLY and POPOVICH, JJ., and MONTEMURO, J. *

MONTEMURO, Judge.

These cross appeals lie from an order of the Court of Common Pleas of Susquehanna County denying an emergency petition for disinterment and reautopsy of the deceased, Martin T. Dillon, filed by petitioner Patricia Dillon Scher, supported by intervenors Suzanne R. Dillon and Michael Dillon, and granting the disclosure to petitioner of an autopsy report in the possession of the Commonwealth.

On June 2, 1976, the deceased, Martin T. Dillon, died from a shotgun blast to the chest. The gun belonged to Stephen Scher, M.D., a close friend with whom the deceased had been shooting clay pigeons at a hunting lodge owned by the Dillon family. The petitioner herein, Patricia Dillon Scher, is the widow of the decedent and the wife of Stephen Scher. The death was ruled accidental by the [then] coroner pursuant to autopsy findings.

In April of 1995, pursuant to legal proceedings initiated by the coroner, 1 the body of Martin Dillon was exhumed, reautopsied and reburied. In June, a public announcement was released by the [current] coroner to the effect that the manner of Martin Dillon's death had been homicide. The basis of the coroner's conclusion was not revealed, nor was the report of the second post mortem examination made public. At no point during the course of these proceedings was an appeal taken, or emergency injunction or intervention sought by Patricia Dillon Scher. 2 Rather, in August, the instant petition was filed, 3 requesting that the body of petitioner's late husband be disintered and reautopsied, and that preliminary discovery in aid of the reautopsy be granted. The petition, supported by Suzanne Dillon and Michael Dillon, the children of the deceased and petitioner, grounded the request on assertions that the publicity surrounding the coroner's announcement that the death had been a homicide necessarily resulted in speculation that Stephen Scher, petitioner's husband, was responsible for Martin Dillon's demise. Such speculation, it was argued, resulted in great personal anguish to the petitioner, had caused her severe emotional distress as well as possible loss of future income, and only a reautopsy by three (named) disinterested pathologists, aided by certain items of discovery would resolve the difficulties caused by the coroner's conclusion.

After hearings, the trial court denied the petition in part on the basis that the standard for granting an exhumation had not been met, but granted petitioner's request that the autopsy report be disclosed. Both petitioner and the Commonwealth now appeal from the trial court's order.

Petitioner first argues that the trial court applied the wrong standard in denying her request for exhumation and reautopsy. The trial court based its decision on the holding in Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301 (1926). There our Supreme Court stated:

Without reciting the averments of the petition and answer, it is sufficient to say, the former did not state facts which imperatively required that its prayer be granted, and, when the averments of the answer are taken into consideration, the matter appears as one entirely for the discretion of the tribunal.

Id. at 530, 135 A. at 307 (emphasis supplied).

The trial court concluded that the exhumation was not imperatively required because the sole basis for petitioner's prayer for relief was jeopardy to her future income, which was dependent on Stephen Scher, and because the children's prayer for relief showed no injury to themselves or to their mother which an exhumation and reautopsy would definitively redress. The Commonwealth adopts this position with the additional contention that because there is an on-going criminal investigation almost all of the material, both documentary and testimonial, related to Martin Dillon's death is privileged; thus, the higher standard, that the need for exhumation be shown as "imperatively required," is necessary but has not been met. Petitioner contends that Marshall is distinguishable on its facts, and that the proper standard was enunciated by this court in Wawrykow v. Simonich, 438 Pa.Super. 340, 652 A.2d 843 (1994), where it was concluded that a showing of "reasonable cause" was sufficient to justify exhumation.

In Marshall, the request of a convicted murderer who sought to have the body of his victim exhumed was denied. The Court observed that the procedure was not imperatively required as "the petition [for exhumation and autopsy] fails to disclose what it was proposed to develop through an autopsy more than had already been shown by the examination of the body made by the coroner's physician." Thus, not even a "reasonable cause" standard would have been met by the proffered explanation for the exhumation and autopsy. Moreover, the Court noted that the close relatives of the deceased had been given no notice of the request, which omission, standing alone, would have sufficed to warrant denial of the petition.

In Wawrykow, exhumation was sought in order that DNA testing might be performed to determine the paternity of a child, on whose behalf a claim had been lodged against the decedent's estate. The Superior Court held that the averments of the exhumation petition, in conjunction with the evidence of the proposed DNA testing, supplied the reasonable cause necessary to warrant disinterment.

In actuality, the seminal case in Pennsylvania on the right to disinter and reinter bodies is the Supreme Court's decision in Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904), which concerned a widow's petition to move her husband's body from the cemetery in which it was buried to another containing the grave of a daughter. Because of space considerations, the daughter's body could not be moved to where the husband was buried. Relatives of the husband sought to enjoin the reinterment. The Court found that reasonable cause was necessary for reinterments, and that the widow had made the necessary showing. See also, Leschey...

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7 cases
  • COM. EX REL. DIST. ATTY. OF BLAIR COUNTY
    • United States
    • Pennsylvania Supreme Court
    • August 15, 2005
    ...2002. Both the trial court and the Superior Court panel relied on the prior Superior Court panel decision of In re Martin Dillon, 449 Pa.Super. 559, 674 A.2d 735 (1996), for the proposition that the phrase "all of [coroner's] official records and papers" in Section 1251 encompasses autopsy ......
  • COM. EX REL. DIST. ATTORNEY OF BLAIR COUNTY
    • United States
    • Pennsylvania Superior Court
    • March 24, 2003
    ...it must be released pursuant to the Pennsylvania Coroner's Act, 16 P.S. §§ 1231-1253, and this Court's decision in In re Dillon, 449 Pa.Super. 559, 674 A.2d 735 (1996). We disagree. We therefore reverse and remand for the trial court's findings of fact and determination of whether the Commo......
  • Penn Jersey Advance, Inc. v. Grim
    • United States
    • Pennsylvania Supreme Court
    • January 22, 2009
    ...In re Buchanan, 583 Pa. 620, 880 A.2d 568 (2005). In Buchanan, we approved of the Superior Court's reasoning in In re Dillon, 449 Pa.Super. 559, 674 A.2d 735 (1996), which had interpreted the reference in Section 1251 to "official records and papers" as including autopsy reports. We determi......
  • Johnstown Tribune Publishing v. Ross
    • United States
    • Pennsylvania Commonwealth Court
    • March 30, 2005
    ...Appellant relies on two Superior Court cases that are neither persuasive nor binding on this Court. In the first case, In re Dillon, 449 Pa.Super. 559, 674 A.2d 735 (1996), decedent's widow petitioned for disinterment and reautopsy of her deceased husband, whose death had been ruled a homic......
  • Request a trial to view additional results

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