Hatbob v. Brown

• Citation: 394 Pa.Super. 234,575 A.2d 607
• Parties: Sandra L. HATBOB and Darlene L. River, Appellants, v. Reginald BROWN and James L. Nardelli, Appellees.
• Decision Date: 16 May 1990
• Court: Pennsylvania Superior Court

Page 607

575 A.2d 607

394 Pa.Super. 234

Sandra L. HATBOB and Darlene L. River, Appellants, v. Reginald BROWN and James L. Nardelli, Appellees.

Superior Court of Pennsylvania.

Argued March 20, 1990.

Filed May 16, 1990.

James R. Walker, Pittsburgh, for appellants.

James R. Farley, Pittsburgh, for Brown, appellee.

Stephanie G. Spaulding, Pittsburgh, for Nardelli, appellee.

Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.

CAVANAUGH, Judge.

The issues in this case are whether the court below properly entered non-suits against the appellants, Sandra L. Hatbob and Darlene River, in their actions for breach of contract against a testator who changed his will, and for legal malpractice against the attorney who prepared the will that was subsequently changed.

After the appellants, the plaintiffs below, concluded their case in chief in a jury trial before Louik, J., the court entered a non-suit in favor of the appellees. The motion of the appellants to remove the non-suits was denied and an appeal has been taken to this court.

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiff's evidence. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). It may be entered only in cases where it is clear that the plaintiff has not established a cause of action, giving the plaintiff the benefit of all favorable evidence and all reasonable inferences arising from the evidence. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988). However, a jury may not be permitted to reach its verdict based on speculation or conjecture. Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). A judgment of non-suit is properly entered if the plaintiff has not introduced evidence sufficient to establish the necessary elements to maintain an action. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Further, it is the duty of the trial judge to determine, prior to submitting the case to the jury, whether the plaintiff has met this burden. Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961).

Viewing the evidence in the light most favorable to the appellants, it appears that in December, 1973, Reginald Brown contacted James L. Nardelli, an attorney whom he knew, and requested that simple wills be prepared for him and his wife. At this time, Mr. Nardelli had not yet met Mrs. Brown. The attorney conferred with Mr. and Mrs. Brown on December 26, 1973. Mr. Nardelli knew that Mr. and Mrs. Brown had been previously married and that Mrs. Brown had two children by her previous marriage, Sandra Hatbob and Darlene L. River, the appellants herein, and Mr. Brown had a daughter, Elizabeth G. Smith (who is now Elizabeth Stevvins). Mr. Brown told his lawyer that he and his wife would soon be moving to Florida and he instructed Mr. Nardelli to prepare separate wills. The testamentary disposition was uncomplicated and Mr. Brown left his entire estate to Mrs. Brown, if she survived him by sixty days, and if not, his estate was to go in equal shares, to his two stepdaughters, Sandra Hatbob and Darlene River, and his daughter, Elizabeth G. Smith. Mrs. Brown executed a similar will leaving her estate to her husband, if he survived her by sixty days, and if not, then in equal shares to her two daughters and stepdaughter. ¹ Both wills were dated December 31, 1973. Mr. Nardelli advised the Browns to have their wills reviewed by a Florida attorney, as they were moving to that state shortly after the wills were executed. They did not have the wills reviewed by an attorney in Florida.

Mr. Brown testified that he did not discuss his financial affairs with Mr. Nardelli, but merely told him who the beneficiaries were to be. The will expressed his intentions at the time it was signed and he was sure it also expressed his wife's intentions. Mr. Brown understood that he could change his will in the future. Mr. Nardelli also believed that the wills could be changed by either party at any time in the future.

Mrs. Brown died in Florida in April, 1985 and Mr. Brown inherited her entire estate under the December, 1973 will. Subsequently, Mr. Brown executed new wills in which he left his estate to his daughter, Elizabeth S. Stevvins. In March, 1986, the appellants commenced a civil action in Allegheny County against Mr. Brown, alleging breach of contract by making a new will and against James L. Nardelli for negligence.

Following the presentation of the plaintiffs' case in the court below, the appellees' motion for compulsory non-suit was granted. By order dated June 26, 1989, the court refused to take off the non-suit and this appeal followed.

In order to consider the propriety of the court's refusal to submit the case to the jury, we must consider the evidence in support of the appellants' claim that there was an enforceable oral contract to make wills that could not be changed by the testators. The appellants must meet the exacting evidentiary burdens placed by law upon one who would establish an oral contract to make a will. Friedman Estate, 483 Pa. 614, 398 A.2d 615 (1978). These requirements were summarized in Fahringer v. Strine Estate, 420 Pa. 48, 53-55, 216 A.2d 82, 85-86 (1966) as follows:

Certain rules have been established in this area of the law: (a) a contract to make a will or to bequeath by will, as other contracts, must be established by proof of an offer, an acceptance and legal consideration (Reynolds v. Williams, 282 Pa. 148, 127 A. 473; Kocher Estate, 354 Pa. 81, 46 A.2d 488; Goldstein Estate, 384 Pa. 1, 119 A.2d 278); (b) the terms of the contract must be shown with certainty and lucidity (Soffee v. Hall, 377 Pa. 306, 105 A.2d 144; Hook's Estate, 207 Pa. 203, 56 A. 428); (c) the evidence must be scrutinized with great care (Burgess v. Burgess, 109 Pa. 312, 1 A. 167; Bradshaw's Estate, 243 Pa. 114, 89 A. 831; Stafford v. Reed, supra, [363 Pa. 405, 70 A.2d 345] ); (d) there must be 'direct evidence' in proof of the contract (Calvert v. Eberly, 302 Pa. 152, 156, 153 A. 146; Consentino v. Vittoria, 394 Pa. 538, 541, 147 A.2d 839); (e) as in the case of other claims against a decedent's estate, the evidence in proof of the contract, must be 'clear, direct, precise and convincing' (Petro v. Secary Estate, 403 Pa. 540, 170 A.2d 325; Klemow Estate, 411 Pa. 136, 140, 191 A.2d 365); ...

The only witnesses who testified as to what occurred at the office of attorney Nardelli about the circumstances surrounding the making of the wills were Reginald Brown and Mr. Nardelli. Neither testified as to any contract to make irrevocable wills. Mr. Brown and Mr. Nardelli both understood that the wills could be changed at any time. ²

The appellants contend that Reginald Brown breached a verbal contract with his wife to create an irrevocable plan of distribution for their estates. Evidence offered to support this alleged agreement included the testimony of Mrs. Hatbob, who testified:

Q. Now, where were you, Sandy? You were telling us about--?

A. Well, we were talking about what would happen if they died and mother was explaining--she told me that they were going to be buried together, that their wills were the same, and we started to talk about a few things that would happen and she told me--. I asked her actually what would happen if she died first? We hadn't talked about that, either.

And she said, well, not to worry; that her will stated everything went to Brownie and then, upon his death, everything went to the three of us.

And I said, "Yes, Mom, but what happens if you do die first? Is there anyway that Dad and Betty Jean could possibly change it or screw my sister and me?"

She said, "No, Sandy. My will takes care of that." She said, "It can't be changed."

And after that there was no reason to talk to her about it. She stated the fact, and once you are told, you are told. Why would you ask again? (Emphasis added.)

The appellants rely on the testimony of Floyd River, the husband of Darlene River, who was present in Florida with Mr. and Mrs. Brown. Mr. River testified:

Q. Did she say anything further about the wills and the arrangement that--?

A. What she said was that they--they both wanted their wills this way and the fact that the wills couldn't be changed. They both agreed upon this; they were happy with their wills the way they were written up and they couldn't change them. She said, "If Mr. Brown should die first, then I am obligated to see to it that I keep the will the same and to see to it when I die that Sandy gets one third share and Darlene gets her third share and Mrs. Stevvins get her third share."

She also went on to say that Mr. Brown had that same obligation.

Q. Okay. Did she read to you from the wills?

A. No.

Q. During this conversation?

A. No.

Q. Who participated? Do you recall the Defendant, Reginald Brown, having any participation in this conversation? I think that you indicated he was present, was he not?

A. Yes, he was present.

Q. Okay.

A. The only participation he took in the conversation was he acknowledged what she said on several occasions. He didn't add anything to the conversation or enter into it. But at various times she would look over to him and say, "Isn't that right, Brownie?" And he would say, "Yes, yes, that is right." He would acknowledge the facts she was saying. He was listening to it somewhat. He wasn't--I felt that Mr. Brown had heard it all before and he was aware of the situation and he was aware of the way --.

The appellants also rely on the testimony of Darlene River, one of the appellants, who testified as follows:

Q. When did you first find out anything about the wills and estate plan that had been made between Irene and Reginald?

A. Well, I knew in December of '73 that she had gotten wills made.

Q. You knew about the fact that she had done that?

A. That that is what they had done, whenever they were up here in '73, that they had made an appointment and had wills drawn up.

Q. Did you know anything about what the will said at that...