Sack v. Feinman

• Decision Date: 30 April 1980
• Citation: 413 A.2d 1059,489 Pa. 152
• Parties: Davida SACK, Appellant, v. Isabel FEINMAN, Appellee.
• Court: Pennsylvania Supreme Court

Page 1059

413 A.2d 1059

489 Pa. 152

Davida SACK, Appellant, v. Isabel FEINMAN, Appellee.

Supreme Court of Pennsylvania.

Argued Oct. 12, 1979.

Decided April 30, 1980.

[489 Pa. 155] Fred Lowenschuss, Philadelphia, for appellant.

Harry R. Kozart, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN and FLAHERTY, JJ.

OPINION

NIX, Justice.

This appeal arises out of a complaint in equity instituted in 1971 by Davida Sack, appellant, against her sister, Isabel Feinman, appellee. The complaint alleged that appellee had induced their mother to execute powers of attorney to enable appellee to control their mother's assets. It was further asserted that appellee fraudulently converted these assets prior to the mother's death by placing them in her own name. Specifically, it was contended that appellee, during January and April of 1970, through the use of the previously mentioned powers of attorney, converted savings bonds and certificates belonging to the mother and placed in trust for appellant to her own account. The chancellor found that the redemption of these bonds and certificates was not at the request or instruction of the mother and rejected the contention that the redemptions were intended by the mother to be a gift to appellee. Thereupon the chancellor found in appellant's favor and imposed a constructive trust in the amount of $25,000. Appellant appeals from the chancellor's refusal to award pre-verdict interest. The Superior Court affirmed without opinion and we granted allocatur. ¹

The facts underlying this action are clear cut. At the time of the adjudication by the court of common pleas in 1975, appellant was 49 years old, appellee was 59, and a third sister, Ruth Gland, ² was 54 years old. Their father had died at an unspecified time prior to the death of their mother who died on November 10, 1970. Appellee, who has never married, had been living with the mother since at least 1960.

Beginning in 1967, the decedent began to purchase savings bonds in her name in trust for each of her daughters. These purchases were as follows:

(a) January 5, 1967 : Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one in the name of decedent in trust for appellant and one in decedent's name in trust for appellee.

(b) January 27, 1967 : First Pennsylvania Bank, three 10 year, five percent savings bonds in the amount of $10,000 each, held in decedent's name in trust for her daughters in the following amounts: appellant $10,000, appellee $5,000, Ruth Gland $10,000.

(c) February 1, 1967 : Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one held in decedent's name in trust for appellee, the other held in trust for Ruth Gland.

In a will executed by the decedent on November 15, 1967, she stated that she had made provisions for Ms. Gland and appellant to each receive $20,000 upon her death from assets from the probate estate:

In making the foregoing provisions in this, my will, I have considered the needs of each of my daughters, ISABEL FEINMAN, RUTH C. GLAND and DAVIDA G. SACK, and I have been mindful of the fact that I have, in my lifetime, made certain provisions for my daughters, RUTH C. GLAND and DAVIDA G. SACK, so that upon my death, each of said daughters, RUTH and DAVIDA, will receive approximately Twenty Thousand ($20,000.00) Dollars, from certain of my assets that will not be a part of my probate estate. I am confident that my daughters, RUTH C. GLAND and DAVIDA G. SACK, as well as my daughter ISABEL FEINMAN, will always know that while I have made greater provision for the financial security of my daughter, ISABEL FEINMAN my love for all of them has always been equal.

Shortly prior to the execution of this will, decedent was hospitalized and executed powers of attorney with various banks empowering appellee to conduct financial transactions on decedent's behalf.

On July 10, 1968, decedent purchased 14 year, five percent savings bonds from Philadelphia National Bank in her name in trust for her three daughters in equal $5,000 amounts. Decedent amended her will in October of 1969 to reflect this increased gift of non-probate assets. On July 30, 1970, decedent purchased three five and three-quarters percent savings certificates from Western Savings Bank in her name in trust for each of her daughters in equal $10,000 amounts. The chancellor found that it was decedent's intention to give appellant and Ms. Gland separate trusts of $35,000 from non-probate assets.

Upon the decedent's death in November 1970, appellant and Ms. Gland received only the $10,000 savings certificates from Western Savings Bank. This was because, beginning on January 26, 1970, appellee began to redeem all of the savings bonds purchased by decedent in trust for her daughters. Using the powers of attorney executed by her mother in appellee's favor, appellee redeemed these bonds in her mother's name, deposited the funds in a joint account she shared with her mother, and then deposited the funds in her sole account. The chancellor found that the redemption of these bonds was not at the request or instruction of the mother. In rejecting appellee's claim that the redemptions were intended by the decedent to be a gift to appellee, the chancellor found that a confidential relationship existed between appellee and her mother and that this relationship was abused by appellee to her sole benefit. Consequently, a constructive trust in the amount of $25,000 was imposed for the benefit of appellant. Following this adjudication, appellant filed with the court a petition to amend the decree nisi praying that interest from the date of her mother's death be included in the award. By order of August 13, 1975, the chancellor ruled that this petition was to be treated as an exception to the decree nisi. On July 6, 1976, the chancellor denied appellant's request for interest and the court en banc affirmed him on September 21, 1976.

Appellee contends that the issue of interest has been waived by appellant's failure to file exceptions to the chancellor's supplemental adjudication and decree nisi, as required by Pa.Civil Procedure Rule 1518. ³ We disagree. It is clear from the record that appellant's Petition to Amend Decree Nisi was intended to be an exception to the chancellor's original adjudication. Furthermore, the chancellor by order expressly termed it an exception and it was so treated and considered by the chancellor and the court en banc. The chancellor correctly refused to permit faulty nomenclature to obscure the true nature of the pleading. The chancellor was given formal notice by appellant that she did not acquiesce in his adjudication and he was given the opportunity to review the propriety of appellant's claimed right to pre-verdict interest. In these circumstances, Rule 1518 was complied with. See, Turnway Corp. v. Soffer, 461 Pa. 447, 455-56, 336 A.2d 871 (1975). Neither Rule 1518 nor our case law have imposed upon an excepting party the duty to file further exceptions to a supplemental decree responding to the exceptions already filed. First, the rule itself speaks only of the necessity of filing exceptions "to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi (and) . . . to a failure or refusal to find any matter of fact or law." Nowhere is it made necessary to file exceptions to protect the failure of the chancellor to accede to the originally filed exceptions. Second, the two cases cited by appellee do not support her position. In Logan v. Cherrie, 444 Pa. 555, 556, 282 A.2d 236, 236 (1971), we ruled that the moving party's claims were waived because of the failure "to file any exception or exceptions to the decree in the court below." (Emphasis in the original.) And in McGrorey Estate, 474 Pa. 402, 378 A.2d 855 (1977), the appellant had also failed to comply with Rule 1518 by not filing any exceptions in the court below. In the present case appellant has timely filed exceptions and was not under further duty of excepting to the chancellor's response to her original exceptions.

Appellee also contends that the prayer for relief in appellant's complaint does not set forth a claim for pre-verdict interest and hence, appellant is not entitled to such interest. ⁴ Again, we disagree. The prayer for relief states in full:

Wherefore, plaintiff respectfully prays:

(a) That an injunction issue, preliminary until final hearing and perpetual thereafter, enjoining the defendant from transferring, conveying, encumbering or any other way obligating funds or investments or any other assets held by her as having belonged to Sara G. Feinman;

(b) That the defendant be ordered to disclose at said preliminary injunction hearing such assets as she transferred by Power of Attorney of Sara G. Feinman or had Sara G. Feinman transfer out of her name since December 15, 1966;

(c) That the said assets as referred to hereinabove be kept intact and be turned over to a Receiver or Trustee as directed by this Court to hold the funds in status quo until final trial is held as to the issue of the ownership of said assets;

(d) That at such time as defendant's fraudulent conduct has been shown, that the assets then be distributed in accordance with the laws of distribution of the Commonwealth of Pennsylvania to the children of the said decedent, Sara G. Feinman;

(e) Such other relief as to your Honorable Court shall seem necessary and proper.

This Court has "long recognized the power of a Chancellor to shape and render a decree which accords with the equities in the case when, as here, the complainant includes a prayer for general relief." Salisbury Township v. Vito, 446 Pa. 200, 204, 285 A.2d 529, 531 (1971), citing Christian v. Johnstown Police Pension Fund Ass'n, 421 Pa. 240, 246, 218 A.2d 746 (1966). Where "(e) quity had proper jurisdiction in th(e) matter (it) may, under the prayer...