Pendergrass v. Pendergrass

• Decision Date: 10 February 2021
• Docket Number: CIVIL ACTION NO. 18-478
• Citation: 518 F.Supp.3d 839
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: Joan PENDERGRASS, Plaintiff, v. Theodore PENDERGRASS, II, et al., Defendant.

518 F.Supp.3d 839

Joan PENDERGRASS, Plaintiff,

v.Theodore PENDERGRASS, II, et al., Defendant.

CIVIL ACTION NO. 18-478

United States District Court, E.D. Pennsylvania.

Filed February 10, 2021

Clifford E. Haines, Danielle M. Weiss, Haines & Associates, Philadelphia, PA, for Plaintiff.

James R. Kahn, Mohammad A. Ghiasuddin, Margolis Edelstein, Philadelphia, PA, for Defendant Robert A. Bacine, Esquire.

Andrew P. Carroll, Matthew S. Marrone, Goldberg Segalla LLP, Philadelphia, PA, for Defendant Jack A. Rounick, Esquire.

Jeffrey D. Servin, Philadelphia, PA, for Defendant Kimberly Joyce Leifheit Cleveland.

Jeffrey B. McCarron, Josh J.T. Byrne, Swartz Campbell LLC, Philadelphia, PA, for Defendant Timothy Holman, Esquire.

Theodore Pendergrass, II, West Chester, PA, pro se.

MEMORANDUM OPINION

Rufe, District Judge

Plaintiff Joan Pendergrass brings this action for wrongful use of civil proceedings and concerted tortious action based on the proceedings on the estate of her late husband, famed Philadelphia soul singer Theodore D. Pendergrass, known as Teddy Pendergrass.¹ Before the Court are certain Defendants’ motions for summary judgment and Plaintiff's motion for partial summary judgment as to liability.

I. BACKGROUND AND PROCEDURAL HISTORY ²

On January 13, 2010, Teddy passed away. He was survived by his wife, Joan, and his three adult children, Theodore Pendergrass, II, Tishia Burnett, and LaDonna Hollerway. Joan and Teddy were married on March 23, 2008; she is not the mother of Teddy's children. Theodore is a half-sibling to Burnett and Hollerway.³ An accident in 1982 had left Teddy a quadriplegic with limited use of his arms. Teddy lived at his Penn Valley, Pennsylvania home with Joan and his mother, Ida Pendergrass, where a nursing home care company provided full time assistance to Teddy.⁴

Teddy's estate proceedings took place from 2010 to 2017 in Montgomery County Orphans’ Court before the Honorable Stanley Ott. There were four relevant documents:

1) 1987 Will – The 1987 Will was drafted by Teddy's attorney and executed by Teddy on October 5, 1987. It left his estate to his then-wife, Karin, and his three children.

2) March 2009 Will – The March 2009 Will was drafted by Teddy's attorney and was the "joint will" of Teddy and Joan. It was executed on March 25, 2009. It made Joan the primary beneficiary of Teddy's estate if he were to predecease her. The will left only a painting to Theodore⁵ and it left twenty-five percent of "all ongoing income derived from the use of the name and/or brand of ‘Teddy Pendergrass’ " to " ‘TP Alliance,’ a nonprofit corporation."

3) Codicil – The Codicil was drafted by Teddy's attorney and dated October 17, 2009. It struck the provisions of the March 2009 Will benefitting Theodore and the TP Alliance.

4) Theodore's Will – Theodore's Will was dated May 25, 2009. It was purportedly drafted by Teddy and left the entire estate to Theodore. Theodore claimed the following about this will:⁶

On the Tuesday before Memorial Day in 2009, Teddy supposedly told Theodore that he wanted Theodore to take care of the family if anything were to happen to him. He asked Theodore to help execute a will. He told Theodore to take a flash drive from his desk containing a will, and said that he wanted his mother Ida and Theodore's mother-in-law, Juanita Saunders, to serve as witnesses.

On the Saturday before Memorial Day, Theodore told Teddy that he had arranged for Kimberly Joyce Leifheit Cleveland, a notary they both had worked with before, to notarize the will the next day. That night, Theodore opened the will on his computer at his house. He inserted the next day's date and printed it out.⁷

The next day, there was an early family dinner at Teddy's house in Penn Valley. After dinner, Joan wasn't feeling well and retired to her bedroom. Theodore drove Teddy, Saunders, and Ida to Delaware in Teddy's specially modified van to meet the notary. Theodore pulled over on the side of the road next to a gas station where the notary was waiting. The will was passed around the van, and Teddy, Ida, and Saunders signed and initialed it. Cleveland then notarized it. Theodore then drove everyone back to Teddy's home in Pennsylvania, where Theodore returned the flash drive to Teddy and placed the executed will in his car for safekeeping.

A. Orphans’ Court Proceedings

On January 20, 2010, Joan applied for, and was granted, letters testamentary pursuant to the March 2009 Will and the Codicil. Shortly thereafter, Theodore attempted to probate Theodore's Will but was denied.⁸

1. Theodore's challenge of the March 2009 Will and the Codicil

On February 19, 2010, Theodore, represented by attorneys Robert Bacine and Jack Rounick, brought a challenge against the March 2009 Will and the Codicil, arguing that they were not properly executed.⁹ This challenge was brought, in part, because the date on Theodore's Will placed it between the execution of the March 2009 Will and the Codicil, and so it could not be presented if the Codicil was valid.

Because Bacine and Rounick were not litigators, attorney James Mannion was hired by Theodore to present the case.¹⁰ In an order dated August 4, 2010, the Orphans’ Court held that the Codicil was invalid as improperly executed and struck it.¹¹ The March 2009 Will was left as the document governing the disposition of the estate. The parties filed cross-appeals—Joan appealed the portion of the decision striking the Codicil and Theodore appealed the portion admitting the March 2009 Will. On August 8, 2011, the Superior Court quashed the appeals.

2. Prima facie hearing

On January 31, 2012, Theodore filed a petition requesting a prima facie validity hearing for Theodore's Will. Mannion represented Theodore at the evidentiary hearing, and Joan, Theodore, Ida, Saunders, and Cleveland testified.¹² On September 13, 2012, Judge Ott determined that Theodore had made a prima facie showing as to the validity of Theodore's Will. It was accepted for probate and Theodore was appointed executor of the estate.

3. Joan's challenge of Theodore's Will

On October 1, 2012, Joan contested Theodore's Will. She asserted that "1) It was not signed by [Teddy]; 2) It was a forgery; 3) It was not prepared at [Teddy]’s request; 4) [Teddy] was not capable of signing his name to the document; and 5) [Teddy] was not in Delaware on the date the document was allegedly signed."¹³ Theodore filed an answer, and a hearing was scheduled for November 20, 2013.

Mannion withdrew after the prima facie hearing because of non-payment, but Bacine and Rounick continued to represent Theodore during discovery.¹⁴ About two weeks before the start of the trial, Bacine and Rounick contacted attorney Timothy Holman to take over the case.¹⁵ After reviewing the files and docket, and speaking with Mannion, Bacine, Rounick, and Theodore, Holman took the case on contingency.¹⁶ Bacine and Rounick withdrew.¹⁷

The trial consisted of eight days of evidentiary hearings between November 20, 2013, and May 15, 2014. Eleven witnesses testified, including Joan, Theodore, Cleveland, Saunders, and Ida. The parties then submitted comprehensive briefs.¹⁸ On October 14, 2014, the Orphans’ Court issued an opinion, finding that Joan "established conclusively that [Theodore's Will] was forged."¹⁹ Judge Ott found, by clear and convincing evidence, that Theodore's "entire case was a fabrication" and concluded that Theodore, Saunders, and Cleveland "all gave false testimony."²⁰ Theodore did not appeal Judge Ott's order and it became final on November 14, 2014.²¹ The March 2009 Will was again admitted to probate, and Holman withdrew his appearance.

In addition to finding the will to be a forgery, Judge Ott ordered that Theodore file an account of his administration of Teddy's estate for his time as executor. Theodore hired attorney Glen Ridenour to perform the accounting.²² On March 4, 2015, Theodore filed the accounting, to which Joan and the Office of Attorney General of the Commonwealth of Pennsylvania²³ filed objections.²⁴ On January 23, 2017, Joan and Theodore entered into an agreement to settle all remaining legal issues related to the estate.²⁵

4. Hollerway and Burnett's challenge to the March 2009 Will

In February 2015, Teddy's daughters, Hollerway and Burnett—represented by Ridenour²⁶ —brought a challenge to the March 2009 Will. This challenge was facially unrelated to Theodore's Will, and if it had succeeded, the 1987 Will would have governed the distribution of the estate. On November 2, 2016, Ridenour withdrew his appearance,²⁷ and on November 15, 2016, Hollerway and Burnett failed to appear at an evidentiary hearing. On January 28, 2017, Hollerway and Burnett's challenge was dismissed, and Joan's control of the estate was final.

B. Procedural History

On February 6, 2018, Joan filed this action, invoking the Court's diversity jurisdiction.²⁸ Plaintiff brought this action against Teddy's adult children, Theodore, Hollerway, and Burnett; their attorneys, Bacine, Rounick, Holman, and Ridenour; and Cleveland the notary. Plaintiff alleged one count of wrongful use of civil proceedings under the Dragonetti Act²⁹ and one count of concerted tortious action.

By Order dated January 31, 2019, the Court dismissed all claims against Defendant Ridenour, and dismissed the concerted tortious action claims against Defendants Bacine, Rounick, and Holman.³⁰ On December 3, 2019, Plaintiff dismissed her claims against Burnett and Hollerway.³¹ The remaining claims are one count of wrongful use of civil proceedings against Theodore, Rounick, Bacine, Holman, and Cleveland; and one count of concerted tortious action against Theodore and Cleveland.

Defendants Bacine, Rounick, and Holman have moved for summary judgment.³² Plaintiff has moved for partial summary judgment on the issue of liability against all Defendants.³³ Defendants Cleveland and Theodore have neither moved for summary judgment nor filed any response to Plaintiff's motion.³⁴

II. LEGAL STANDARD

"The underlying purpose of summary judgment is to avoid a...