In re Estate of Janosky

• Citation: 827 A.2d 512,2003 Pa. Super. 230
• Parties: In re: ESTATE OF VICTOR L. JANOSKY, Deceased. Appeal of: James Janosky.
• Decision Date: 16 June 2003
• Court: Pennsylvania Superior Court

827 A.2d 512

2003 Pa. Super. 230

In re: ESTATE OF VICTOR L. JANOSKY, Deceased.

Appeal of: James Janosky.

Superior Court of Pennsylvania.

Submitted November 4, 2002.

Filed June 16, 2003.

John R. Carfley, Philipsburg, for appellant.

William A. Shaw, Clearfield, for appellees.

Before: HUDOCK, ORIE MELVIN and MONTEMURO¹, JJ.

HUDOCK, J.

¶ 1 This is an appeal from the judgment entered following the denial of the petition to admit to probate a copy of the Last Will and Testament of Victor Janosky, dated February 21, 1992, which named his brother, James Janosky (Appellant), as sole beneficiary of the estate. For the reasons that follow, we affirm.

¶ 2 On February 21, 1992, Victor Janosky executed a Last Will and Testament in the office of his attorney, Donald E. Lee, Esquire, in State College, Pennsylvania. In the Last Will and Testament, Victor left his entire estate to Appellant. The will further provided that in the event Appellant predeceased Victor, their brothers Thomas and John would receive the estate as co-beneficiaries. Victor died approximately nine years later on January 22, 2001, survived by his three brothers, Appellant, Thomas and John.² Following his death, Appellant, Thomas and Thomas' wife, Rosie, went to Victor's home and located in a filing cabinet two photocopies of the executed 1992 will in the original will envelope. The original will document, however, was never located.

¶ 3 On March 7, 2001, Appellant filed a petition to admit a copy of the original will to probate. Thomas and Helen (on behalf of her deceased husband) (Appellees) opposed the petition. Hearings were held on April 9, 2001, May 29, 2001, and November 1, 2001. On December 12, 2001, the court entered an "Opinion and Order" denying the petition. The court, in reaching its decision, reasoned that the decedent retained custody and possession of his original will and, as such, at his death, when the original document could not be found, it was presumed by law to have been revoked or destroyed. The court further found that Appellant did not provide sufficient evidence to rebut the presumption of destruction and support his theory that the original had merely been lost or misplaced. On December 21, 2001, Appellant filed a motion for post-trial relief. While the post-trial motion was pending, Appellant presented a motion for reconsideration, which the court granted, and thereafter scheduled argument for January 28, 2002. Following oral argument and by order dated March 11, 2002 (filed March 14, 2002), Appellant's motion for post-trial relief was dismissed by the court. Subsequently, Appellant filed another petition for reconsideration, this time requesting the court to schedule a hearing in order that he may present the testimony of four additional witnesses. The court denied the petition on April 3, 2002. On April 11, 2002, the order of the court denying probate of the February 21, 1992, Last Will and Testament of the decedent was reduced to judgment. This timely appeal followed.

¶ 4 On appeal, Appellant presents the following issues for our consideration:

I. WHETHER THE COURT ERRED AS A MATTER OF LAW BY REFUSING TO ALLOW [APPELLANT] THE OPPORTUNITY TO CALL PARTIES TO THE SUIT AS WITNESSES BASED ON THE DEAD MAN'S RULE?

II. WHETHER THE COURT AS A MATTER OF LAW MISAPPLIED THE PROVISIONS OF THE DEAD MAN'S RULE?

III. WHETHER THE COURT AS A MATTER OF LAW ESTABLISHED A CONCLUSIVE PRESUMPTION WITH RESPECT TO THE DESTRUCTION OF A MISSING WILL, WHEN THE RULE OF LAW LOOKS TO THE ESTABLISHMENT OF A REBUTTABLE PRESUMPTION IN THOSE CIRCUMSTANCES?

IV. WHETHER THE COURT AS A MATTER OF LAW FAILED TO CONSIDER SUBSTANTIAL CIRCUMSTANTIAL EVIDENCE OF TESTAMENTARY INTENT BY THE TESTATOR SO AS TO REBUT THE PRESUMPTION OF THE DESTRUCTION OF THE WILL?

V. WHETHER THE COURT ERRED AS A MATTER OF LAW BY FAILING TO ADDRESS THE ISSUE AS A MATTER INVOLVING A LOST WILL AS OPPOSED TO A DESTROYED WILL BASED ON THE SUBSTANTIAL TESTIMONY PRESENTED BY [APPELLANT] AND THE PAUCITY OF EVIDENCE ADMITTED BY APPELLEES IN SUPPORT OF THEIR POSITION ON THE DESTRUCTION OF THE WILL?

VI. WHETHER THE COURT ERRED AS A MATTER OF LAW IN FAILING TO ALLOW [APPELLANT] THE OPPORTUNITY TO PRESENT TESTIMONY ON RECONSIDERATION PERTINENT TO THE ISSUE OF THE INTENT OF THE TESTATOR AT OR ABOUT THE TIME OF HIS DEATH?

VII. WHETHER BASED ON THE FACTS AND CIRCUMSTANCES OF THIS CASE THE COURT ERRED BY NOT FINDING AS A MATTER OF LAW THAT THE DECEDENT'S TESTAMENTARY INTENT, AS EXPRESSED IN HIS DUPLICATE ORIGINAL WILL, SHOULD HAVE BEEN GIVEN PRIORITY AS OPPOSED TO DESTROYING THAT INTENT BASED UPON THE UNFOUNDED THEORY THAT THE LAST WILL AND TESTAMENT WAS DESTROYED?

Appellant's Brief at 3-4.

¶ 5 Appellant, in issues I and II, argues that the court erred in refusing to allow him the opportunity to testify to the relationship between the decedent and himself and the lack of a relationship between the decedent and his brothers Thomas and John and their families, based on the Dead Man's Act.³ Specifically, Appellant asserts that this testimony should have been admissible pursuant to the devisavit vel non exception to the Act.⁴ Appellant further contends that the court similarly erred by not permitting him "to call his surviving brother and his sister-in-law as witnesses on cross-examination." Appellant's Brief at 10. He posits that by calling his brother and sister-in-law on cross-examination, he waived the protections of the Dead Man's Act and, as such, he should have been permitted to examine them regarding matters occurring during the decedent's lifetime. Thus, he concludes that his testimony and the testimony of his brother and sister-in-law, which "could have potentially provided insight into the relationship between the parties and the decedent and his true intentions regarding his estate[,]" was improperly precluded by the trial court. Id. Appellees, however, argue that Appellant has waived these issues as a result of his failure to include them in his post-trial motions.

¶ 6 This Court has recently addressed whether post-trial motions are necessary following a final order in orphans' court proceedings to preserve an issue for review. See In Re: Estate of Rosser, 821 A.2d 615 (Pa.Super.2003)

. In determining that post-trial motions were not required, we stated:

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).

In Re: Estate of Rosser, 821 A.2d at 619

. Thus, because Appellant was not required to file post-trial motions or exceptions to the court's determination, we find that his claims on appeal are not precluded on this basis. However, while counsel for Appellant objected to exclusion of the evidence arguing that the testimony was not prohibited by the Dead Man's Act, his argument was framed in terms of relevancy of the evidence. At no time prior to the filing of this appeal did Appellant raise the devisavit vel non exception. Accordingly, we find this argument has not properly been preserved for our review. Id. at 619. See also Boring v. Conemaugh Memorial Hospital, 760 A.2d 860, 861 (Pa.Super.2000),

appeal denied, 566 Pa. 632, 781 A.2d 137 (2001) (providing that appellant may not argue a new and different ground on appeal that was not properly raised in the trial court).

¶ 7 Nonetheless, we note that even if we determined that the exception applied, we would find that this error does not mandate a new hearing, as the proffered testimony would have merely repeated other evidence that was admitted during the proceedings. During his direct testimony at the April 9, 2001, hearing, Appellant testified to his close relationship with the decedent and the lack of a relationship between the decedent and their brothers, Thomas and John. Specifically, Appellant testified that decedent had lived with him for a period of nine years at his home in Kylerstown before decedent bought and moved into a home in Clearfield on October 31, 2000. During the time that Appellant and decedent resided together, the decedent executed the February 1992 will naming Appellant as his sole beneficiary. Appellant testified that the decedent had...