In re Estate of Rosser

• Decision Date: 02 April 2003
• Citation: 821 A.2d 615
• Parties: In re ESTATE OF Judith Ann ROSSER, A/K/A Judith Ann Baker. Appeal of Lloyd J. Rosser.
• Court: Pennsylvania Superior Court

821 A.2d 615

In re ESTATE OF Judith Ann ROSSER, A/K/A Judith Ann Baker.

Appeal of Lloyd J. Rosser.

Superior Court of Pennsylvania.

Submitted July 29, 2002.

Filed April 2, 2003.

Charles M. Watkins, Reading, for appellant.

Laurence M. Kelly, Montrose, for appellees.

Before: JOHNSON, HUDOCK and BECK, JJ.

OPINION BY HUDOCK, J.

¶ 1 This is an appeal by Lloyd J. Rosser (Rosser) from the order of the orphans' court that disposed of his objections to the final accounting of the Estate of Judith Ann Rosser, a/k/a Judith Ann Baker (Decedent), distributed the assets of the estate and denied his election to take against the will, on the basis that the estate was insolvent. For the reasons that follow, we affirm.

¶ 2 Decedent and Rosser married on February 14, 1990. This marriage was Decedent's third marriage and Rosser's second marriage. Decedent had five children from her first marriage, Richard Baker, Linda Baker Welch, Larry Baker, James Baker and John Baker. Rosser had two children from his previous marriage. No children were born during the marriage of Decedent and Rosser.

¶ 3 During December 1993, Decedent was diagnosed with breast cancer. Over the next three years, the cancer metastasized to Decedent's lungs, cervix, lymph nodes and brain. In March 1995, Decedent and Rosser consulted with Malcolm MacGregor, Esquire, regarding a medical malpractice claim against Decedent's treating physicians and hospital for misdiagnosis and failure to detect the breast cancer in an earlier mammogram. Subsequently, a medical malpractice lawsuit was filed by Decedent in the Court of Common Pleas of Lackawanna County against her treating physicians and hospital, with a loss of consortium claim included on behalf of Rosser.¹

¶ 4 By October 1996, Decedent was primarily confined to bed or a wheelchair and required assistance to move about. On October 4, 1996, Decedent, at her request, was removed from the marital residence by her children, Richard and James Baker, and Decedent's identical twin sister, Jean Carter, and taken to the home of Decedent's daughter, Linda Baker Welch, in Springville, Pennsylvania. Thereafter, James Baker, on behalf of Decedent, filed a Petition for Protection From Abuse, and a temporary order was issued against Rosser. A hearing was held on the petition on October 11, 1996, at the conclusion of which the court found abuse had occurred and that Decedent reasonably was in fear of her safety. The court then continued the temporary order for an additional forty-five days in order to obtain an evaluation from the Susquehanna County Aging Services.

¶ 5 On October 23, 1996, Decedent filed a complaint for divorce from Rosser. Additionally, on that date, Decedent executed several other documents. Decedent executed a new will, which disinherited Rosser and provided as her beneficiaries her four children, Linda Baker Welch, Richard Baker, Larry Baker and James Baker.² She also entered into an employment contract with her children wherein, in consideration of the children providing food, shelter, comfort, companionship, and protection from Rosser for the rest of her life, the Decedent promised to pay her children the sum of two million dollars. As security for the employment contract, the Decedent also executed mortgages, bonds, a security agreement, an assignment of judgment, an assignment of assets and a bill of sale. These documents transferred all of Decedent's personal property, including all choses in action and lawsuits, to her children.

¶ 6 Decedent died on November 6, 1996. Her will was probated on November 15, 1996, and on January 6, 1997, Rosser filed an election to take against the will. On September 20, 2000, the medical malpractice lawsuit was settled for the sum of $1,350,000.00. On October 24, 2000, Rosser filed a petition to show cause why an account should not be filed in accordance with 20 Pa.C.S.A. section 3501.1. A first and final account was filed on December 14, 2000, and Rosser filed objections to the account on January 2, 2001. Hearings on the objections and Rosser's election to take against the will were held March 12, 2001, and July 2, 2001. After the parties filed briefs in support of their respective positions, the court entered an order January 28, 2002, granting in part and denying in part Rosser's objections to the accounting and his election to take against the will and distributing the assets of the estate. Specifically, the court directed that the funeral expenses and the two million dollar contract between Decedent and her children be paid from the estate assets. The court further held that the mortgages signed by the Decedent on October 23, 1996, were "void insofar as they seek to encumber any property owned by [Decedent and Rosser] by tenancy by the entireties." Finally, the court directed that while Rosser was entitled to a one-third elective share of the residual value of the estate as a matter of law, because the accounting showed that the estate was insolvent, Rosser's election to take against the will was denied. On February 19, 2002, Rosser filed a petition for reconsideration, which was subsequently denied. This timely appeal followed.³

¶ 7 On appeal, Rosser presents the following issue for our consideration:

Is an employment contract between a dying mother and her children by a previous marriage, to provide care and protection to the mother for the remainder of her life, where (a) the funds to pay the children were an expectancy from an unsettled lawsuit, (b) the funds to pay the children were property in custodia legis, (c) the contract was the result of undue influence, (d) the contract was unconscionable, (e) the contract was illusory, and (f) under the circumstances the contract was designed to disinherit the dying mother's husband, legally enforceable and sufficient to trump the husband's election to take against wills and conveyances?

Rosser's Brief at 3.

¶ 8 Initially, we note our standard of review of the findings of an orphans' court:

When reviewing a decree entered by the Orphans' Court, this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of the discretion.

In re Estate of Geniviva, [675 A.2d 306, 310 (Pa.Super.1996) ] (internal citations omitted). However, "we are not constrained to give the same deference to any resulting legal conclusions." Id. "[W]here the rules of law on which the [court] relied are palpably wrong or clearly inapplicable, we will reverse the [court's] decree." Horner v. Horner, 719 A.2d 1101, 1103 (Pa.Super.1998) (discussing standard of review for courts of equity).

In re Estate of Harrison, 745 A.2d 676, 678-79 (Pa.Super.2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000).

¶ 9 Before we address Rosser's issue and arguments on appeal, we must first address the Estate's contention that Rosser has waived his claims on appeal as a result of his failure to file post-trial motions pursuant to Pa.R.C.P. 227.1. While Rosser concedes that he did not file post-trial motions, he counters that he was not required to file such and instead has preserved his issue and arguments on appeal by the timely filing of a motion for reconsideration. ¶ 10 Pa.R.C.P. 227.1 provides that a party shall file post-trial motions within ten days after:

(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or

(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.

Pa.R.C.P. 227.1(c). The Rule further provides that grounds which are not raised in the post-trial motions shall be deemed waived on appellate review. Pa.R.C.P. 227.1(b)(2). While Rule 227.1 has been held applicable in both civil and equity actions, see Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491 (2002),

it does not apply to the within matter. Rather, Pa.O.C.R. 7.1 governs the procedure for challenging the entry of a final order, decree or adjudication in orphans' court proceedings. Pa. O.C.R. 7.1 provides in relevant part as follows:

(a) General Rule. Except as provided in Subdivision (e) [ (Adoptions and Involuntary Terminations) ], no later than twenty (20) days after entry of an order, decree or adjudication, a party may file exceptions to any order, decree or adjudication which would become a final appealable order under Pa.R.A.P. 341(b) or Pa. R.A.P. 342 following disposition of the exceptions. If exceptions are filed, no appeal shall be filed until the disposition of exceptions except as provided in Subdivision (d) (Multiple Aggrieved Parties). Failure to file exceptions shall not result in waiver if the grounds for appeal are otherwise properly preserved.

(b) Waiver. Exceptions may not be sustained unless the grounds are specified in the exceptions and were raised by petition, motion, answer, claim, objection, offer of proof or other appropriate method.

* * * * * *

(g) Exceptions. Exceptions shall be the exclusive procedure for review by the Orphans' Court of a final order, decree or adjudication. A party may not file a motion for reconsideration of a final order.

Pa.O.C.R. 7.1(a), (b), (g). Thus, because Rosser was not required to file post-trial motions or exceptions to the January 28, 2002, order, we find that his claims on appeal are not precluded on this basis. However, to the extent that Rosser attempts to raise new theories on appeal due to their inclusion in his motion for reconsideration, we find these arguments waived on two bases. First, Rosser raised these allegations in an improper filing pursuant to Rule 7.1(g). Second, at trial, the only arguments asserted by Rosser were that the employment contract between the Decedent and her children must fail for lack of consideration or, in the...