In re Marsh
| Decision Date | 22 November 2017 |
| Docket Number | No. 743 MDA 2017,743 MDA 2017 |
| Citation | 175 A.3d 993 |
| Parties | IN RE: Estate of: Marcella Marie MARSH Appeal of: Brian Marsh |
| Court | Pennsylvania Superior Court |
Brian J. Cali, Dunmore, for appellant.
Matthew P. Barrett, Scranton, for Lizza, appellee.
John J.J. McGee, Scranton, for Forti and LaCapra, appellees.
Brian Marsh appeals from the decree entered in the Court of Common Pleas of Lackawanna County, Orphans' Court Division, denying his petition for disinterment of the remains of Marcella Marie Marsh, Deceased ("Decedent"). Upon careful review, we affirm.
Decedent died on July 28, 2013, at the age of 66, survived by three daughters, including Appellee Colleen Lizza, and one son, Appellant Marsh. Marsh was appointed administrator of Decedent's estate after obtaining renunciations from his sisters. He subsequently agreed to resign as administrator after Lizza filed a petition to remove him from office.
On April 14, 2016, Marsh, in his individual capacity, filed a petition for disinterment of his mother's body. Also in 2016, Marsh filed a wrongful death and survival action against Lizza, seeking damages related to Decedent's death. In his disinterment petition, Marsh claimed that, while her death certificate listed cardio-respiratory arrest as cause of death, Decedent had no history of heart problems, and he questioned whether her manner of death was, in fact, "natural," as stated on her death certificate. Because Decedent's body had not been autopsied, Marsh sought disinterment "to determine whether or not there is any reason sufficient to believe that the sudden death of the [D]ecedent may have resulted from the act or negligence of person or persons other than the deceased." Petition for Disinterment, 4/14/16, at ¶ 9.
Answer to Petition for Disinterment, 5/17/16, at ¶ 9 (emphasis in original).
The Orphans' Court held a hearing on December 8, 2016, at which time the court granted Marsh leave to orally amend his petition to include as a basis for disinterment Marsh's desire to perform genetic testing on the Decedent to discover any potential medical concerns that might affect Marsh or his offspring. Following the hearing and the submission of briefs, the court denied Marsh's petition by Decision and Decree dated April 6, 2017, in which the court concluded that it was "hesitant to set a precedent that allows for the exhumation and autopsy of any individual simply because no autopsy was performed, or in the circumstance where an heir only becomes concerned with a Decedent's medical history years after the death of said Decedent." Orphan's Court Decision and Decree, 4/6/17, at 4. This timely appeal follows, in which Marsh raises the following question for our review:
Whether the Orphans' Court committed an error of law and/or an abuse of discretion in denying [Marsh's p]etition since reasonable cause was shown for exhuming and autopsying the [D]ecedent, and the objective sought for requesting same could be achieved?
We begin by noting:
[o]ur standard of review from a final order of the Orphans' Court Division requires that we accord the findings of an Orphans' Court, sitting without a jury, the same weight and effect as the verdict of a jury. Thus, we will not disturb those findings absent manifest error. We shall modify an Orphans' Court order only if the findings upon which the order rests are not supported by competent or adequate evidence or if the court engaged in an error of law, an abuse of discretion, or capricious disbelief of competent evidence.
In re Ciaffoni , 787 A.2d 971, 973 (Pa. Super. 2001).
With regard to the removal of a body from its final resting place, our Supreme Court has stated that "there is no universal rule applicable alike to all cases, but each must be considered in equity on its own merits, having due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association." Pettigrew v. Pettigrew , 207 Pa. 313, 56 A. 878, 880 (1904).
As the Supreme Court made plain in Pettigrew , with regard to reinterment1 there is "reserv(ed) always the right of the court to require reasonable cause to be shown for it." [Id. ] at 880 [.] In addition, the Court made plain that in deciding whether reasonable cause for reinterment had been shown, the lower court should take into account a variety of factors [.] Whether reasonable cause for reinterment has been shown will depend upon the respective weight, or persuasiveness, of these factors as they are all considered together[.]" Id.
Novelli v. Carroll , 278 Pa.Super. 141, 420 A.2d 469, 472 (1980). Among the factors to be considered are: (1) the degree of relationship to the decedent of the persons in favor of and opposed to reinterment; (2) desire of the decedent, with the general presumption being that the decedent would not wish her remains to be disturbed; (3) the conduct of the persons seeking and opposed to reinterment; (4) the length of time that has elapsed since the original interment; and (5) the strength of the reasons offered both in favor of and in opposition to reinterment. See id. at 472–74. "If the person seeking or opposing reinterment does so to harass another, his case will be very weak." Id. at 474.
Here, Marsh argues that the Orphans' Court abused its discretion in denying his request for disinterment because his stated reasons for seeking exhumation constituted reasonable cause. He also asserts that the court utilized the improper standard, requiring Marsh to establish "good cause" rather than "reasonable cause." We find neither claim persuasive.
When Marsh originally filed his petition, nearly three years after his mother's death, the stated purpose was his belief, not supported by any articulable facts, that his mother's death may have been caused by a "person or persons other than the deceased." Petition for Disinterment, 4/14/16, at ¶ 9. Although he did not name the "person or persons," shortly after filing his petition for disinterment, Marsh filed a wrongful death and survival action against Lizza in civil court.
In support of his petition for disinterment, Marsh obtained the expert opinion of Cyril Wecht, M.D., a renowned pathologist. Doctor Wecht submitted a written report, in which he noted that "[g]enetic predisposition is a significant factor in determining future medical testing, personal habits, dietary restrictions, physical activity, etc." Only after receiving Dr. Wecht's report did Marsh, on the day of the hearing, seek to amend his petition to add as a ground for disinterment his alleged interest in performing genetic testing on his mother's remains to benefit himself and his children.
In light of these facts and circumstances, we cannot say that the Orphans' Court abused its discretion in failing to find Marsh's arguments persuasive, particularly in light of the seemingly disingenuous nature of his "genetic testing" rationale. His own medical expert testified that the most likely cause of death was a natural one. See N.T. Hearing, 12/8/16, at 24. Although Dr. Wecht mentioned the possibility of trauma to the Decedent's body, that speculation was based solely on statements made by Marsh that the funeral director had told Marsh that Decedent's jaw and nose had been broken. Under oath at his deposition, however, Marsh conceded that the funeral director never told him Decedent's jaw
or nose were broken. Instead, Marsh stated that the funeral director told him his mother's nose "was pushed off to the side." N.T. Hearing, 12/8/16, at 26. Notably, Marsh did not call the funeral director to testify as to the condition of his mother's body. In any event, Marsh would have been aware of any statements made to him by the funeral director in 2013, and could have requested an autopsy at that time.
Moreover, the cases upon which Marsh relies are all distinguishable on their facts and, therefore, fall short of convincing this Court to disturb the Orphans' Court's decision. In Wawrykow v. Simonich , 438 Pa.Super. 340, 652 A.2d 843 (1994), the appellant filed a claim against a decedent's estate, alleging that her son was the child of the decedent. The trial court denied appellant's claim on the sole basis that there was no statutory or case law authorizing exhumation for the purpose of establishing paternity for inheritance purposes.
On appeal, this Court noted the following factors: appellant averred that she was the mother of the minor child and that the...
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