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                             2017 PA Super 393

IN RE: ESTATE OF THOMAS PAUL                      IN THE SUPERIOR COURT
SCARPACI, DECEASED                                          OF
                                                       PENNSYLVANIA




APPEAL OF: PATRICIA A. SCARPACI

                                                    No. 1741 WDA 2016


               Appeal from the Order Entered October 18, 2016
              In the Court of Common Pleas of Allegheny County
                    Orphans' Court at No(s): 02-13-07272


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

OPINION BY LAZARUS, J.:                         FILED DECEMBER 13, 2017

      Patricia A. Scarpaci (“Wife”) appeals from the order entered in the Court

of Common Pleas of Allegheny County, Orphans’ Court Division, denying and

striking her claim to a spousal share of the Estate of Thomas P. Scarpaci,

Deceased (“Decedent”) on the basis that she forfeited her claim pursuant to

20 Pa.C.S.A. § 2106. Upon careful review, we reverse.

      Decedent died, intestate, on October 9, 2013. He was survived by Wife,

two adult children from a prior marriage and two minor children from his union

with Wife. At the time of Decedent’s death, he and Wife were estranged and

in the midst of divorce proceedings initiated by Wife. During the marriage,

Wife leveled allegations of abuse against Decedent, whom she alleged to be

an alcoholic. On July 26, 2005, Wife filed a petition for protection of abuse

(“PFA”) against Decedent, alleging that, while drunk, Decedent pushed and
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slapped her and engaged in generally abusive behavior. The court granted

Wife a temporary PFA order excluding Decedent from the marital residence1

pending a final hearing. Prior to the final hearing, Wife withdrew the petition.

        On January 23, 2008, Wife filed a complaint in divorce. On July 16,

2009, Wife filed a “Petition For Special Relief and For the Exclusive Right to

Reside in the Marital Residence.”          In support of her claim for relief, Wife

alleged the following:

        Defendant is an alcoholic who drinks excessively every night. He
        intimidates the children and his wife by swearing at them,
        belittling them and threatening them. He eats like an animal by
        tearing into packages of food and making a mess on counters and
        floors. He stays up all night and disturbs the children and wife’s
        sleep by opening and closing doors, getting chopped ice, running
        the water for extended periods of time and running the toilet
        improperly by holding the handle until it sticks in place all night
        and runs.      The [p]etitioner’s children called police to their
        residence on 1/9/02 when they witnessed the defendant kicking
        the petitioner. The police were called numerous times following
        this for the defendant’s drunken behaviors. In 2004, CYF escorted
        petitioner and petitioner’s eldest daughter home from the high
        school since they feared for their safety from the defendant’s
        alcoholic rage from that morning. On 7/25/05, the petitioner filed
        for a protection from abuse [order] against the defendant after he
        pushed and slapped her in one of his drunken rages.

Brief in Support of Patricia Scarpaci’s Assertion of Her Rights as Surviving

Spouse, 2/12/16, at Exhibit [2] (“Petition for Special Relief”). On September

4, 2009, the court issued an order directing Decedent to move from the

marital residence within 75 days and to complete an alcohol evaluation. The

Decedent died before a decree in divorce was entered.

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1   Wife was the sole owner of the marital residence.

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       Wife petitioned for and received letters of administration on Decedent’s

estate. On April 22, 2015, Wife filed an Inheritance Tax return reflecting that

Decedent’s assets were to be distributed in equal shares to his four children.

On May 25, 2015, Wife filed a Certification of Notice Under Rule 5.6(a) 2 in

which she named herself, as well as Decedent’s four children, as the

beneficiaries of his estate. On November 9, 2015, Wife’s counsel faxed to

counsel for Decedent’s two adult children (“Appellees”) an unsigned copy of a

petition for adjudication and statement of proposed distribution indicating that

the estate would be divided equally amongst the Decedent’s four children.

This document was never filed of record.         On November 13, 2015, Wife’s

counsel faxed to Appellees’ counsel a revision to the statement of proposed

distribution reflecting that Wife would be taking her spousal share.       This

document was signed by Wife but, again, was never filed of record.

       At the audit of the account, counsel for the Appellees raised an oral

objection to Wife’s decision to take her spousal share. The Orphans’ Court

held a status conference, but the parties were unable to resolve their issues.

The court concluded that the facts were not in dispute, and ordered the parties

to submit briefs, upon which the court would decide the matter. On October

17, 2016, the court issued an order in which it held that: (1) “the election by

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2 Former Pa.O.C.R. 5.6 required that, within three months of the grant of
letters, the personal representative send written notice of estate
administration to, as relevant here, every person entitled to inherit as an
intestate heir. Effective September 1, 2016, Rule 5.6 was renumbered as Rule
10.5, which remains substantively identical to the former rule.

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Patricia A. Scarpaci under 20 Pa.C.S.A. Section 2201, et seq., and specifically

Section 2203 be denied and stricken,” and (2) “that Patricia Scarpaci’s claim

to an intestate share of the Decedent’s Estate under 20 Pa.C.S.A. Section

2102(4) is denied and forfeited pursuant to 20 Pa.C.S.A. Section 2106 and

2208.” Orphans’ Court Order, 10/17/16.

      This timely appeal follows, in which Wife raises the following issues for

our review:

      1. Whether the [Orphans’ Court] erred as a matter of law and by
      misapplying the law to the facts and evidence of record by stating
      that an election was required by the surviving spouse to assert
      and claim her intestate share of the Decedent’s estate?

      2. Whether the [Orphans’ Court] erred as a matter of law and by
      misapplying the law to the facts and evidence of record by denying
      the surviving spouse’s intestate share of the Decedent’s estate?

      3. Whether the [Orphans’ Court] erred as a matter of law and by
      misapplying the law to the facts and evidence of record by ruling
      that the surviving spouse had forfeited her intestate share of the
      Decedent’s estate?

Brief of Appellant, at 1 (renumbered for ease of disposition).

      We begin by noting our standard and scope of review:

      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 that discretion.
      However, we are not constrained to give the same deference to
      any resulting legal conclusions. The Orphans’ Court decision will
      not be reversed unless there has been an abuse of discretion or a
      fundamental error in applying the correct principles of law.

      This Court’s standard of review of questions of law is de novo, and
      the scope of review is plenary, as we may review the entire record

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       in making our determination. When we review questions of law,
       our standard of review is limited to determining whether the trial
       court committed an error of law.

In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016).

       Wife first asserts that the Orphans’ Court erred by finding that a timely

election was required to assert and claim her intestate share of the Decedent’s

estate.    We agree.      Wife asserted a claim to a spousal share under 20

Pa.C.S.A. § 2102, pursuant to which she would be entitled to one-half of the

Decedent’s intestate estate.3 The Orphans’ Court, apparently conflating the

spousal share with the elective share, denied Wife’s claim to a spousal share

because she did not file an election within six months of the date of probate

as required under 20 Pa.C.S.A. § 2210(b). However, section 2210 pertains to

the procedure for claiming an elective share, which applies only to the

surviving spouse of a decedent who dies testate. Decedent in this matter died

intestate. Wife’s entitlement to a spousal share under section 2102 is entirely

unrelated to the elective share provisions and, as such, is not subject to the

time limitations set forth in Chapter 22. Accordingly, the Orphans’ Court erred

in applying section 2210 to deny Wife a spousal share.

       Wife’s remaining claims are intertwined. Wife asserts that the Orphans’

Court erred in concluding that she forfeited her share of Decedent’s intestate




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3 Where, as here, a decedent dies leaving issue, one or more of whom is not
the issue of the surviving spouse, the surviving spouse is entitled to one-half
of the intestate estate. 20 Pa.C.S.A. § 2102(4).

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estate under subsections (a)(1) and (a)(2) of the forfeiture statute, 20

Pa.C.S.A. § 2106, which provides, in relevant part, as follows:

       (a) Spouse’s share.--

          (1) A spouse who, for one year or upwards previous to the
          death of the other spouse, has willfully neglected or refused
          to perform the duty to support the other spouse, or who for
          one year or upwards has willfully and maliciously deserted
          the other spouse, shall have no right or interest under this
          chapter in the real or personal estate of the other spouse.

          (2) A spouse shall have no right or interest under this
          chapter in the real or personal estate of the other spouse if:

              (i) the other        spouse dies domiciled in this
              Commonwealth         during the course of divorce
              proceedings;

              (ii) no decree of divorce has been entered pursuant to
              23 Pa.C.S. § 3323 (relating to decree of court); and

              (iii) grounds have been established as provided in 23
              Pa.C.S. § 3323(g).

20 Pa.C.S.A. § 2106(a).

       We address the court’s ruling under subsection (a)(2) of the forfeiture

statute first.   Wife filed her complaint in divorce pursuant to Pa.C.S.A. §

3301(c), the “no-fault” provision.4            Brief in Opposition to Administratrix’s

Claim, 2/12/16, at 2 and Exhibit 2.             Accordingly, for purposes of section

3323(g), as incorporated in section 2106(a)(2)(iii), grounds are established


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4  With respect to subsections 2106(a)(2)(i) and (ii), Decedent died a
domiciliary of the Commonwealth of Pennsylvania and no final decree of
divorce was entered prior to his death.




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where both parties have filed affidavits of consent. 5 Here, Decedent never

filed an affidavit of consent. Accordingly, grounds were not established under

section 3323(g) and the trial court erroneously concluded that Wife had

forfeited her intestate share under section 2106(a)(2).

       The court also found that Wife had forfeited her spousal share under

section 2106(a)(1), which requires a finding that the surviving spouse has

either (1) willfully neglected or refused to perform the duty to support, or (2)

willfully and maliciously deserted the other spouse.6 Where non-support is

proven, desertion need not be shown. In re Nixon’s Estate, 159 A. 172 (Pa.

Super. 1932).

       Here, the court based its finding of forfeiture on the “non-support”

provision of section 2106(a)(1), and found as follows:

       [T]he facts of this case, as provided to the [c]ourt in the [b]riefs
       filed by counsel, demonstrate that the parties separated on April
       14, 2007 and [Wife] filed a [c]omplaint in [d]ivorce on January
       23, 2008. Thereafter, she filed a [p]etition for [e]xclusive
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5 Where a no-fault divorce is sought, grounds may also be established under
section 3323(g) if the presumption in section 3301(c)(2) is established and
one party has filed an affidavit of consent. Under section 3301(c)(2), the
consent of a party is presumed where that party has been convicted of
committing a personal injury crime against the other party. That presumption
is not applicable here.

6 The court in this matter did not find forfeiture based on desertion. However,
in light of the family court order directing Decedent to vacate the marital
residence, it would seem unlikely that Appellees could establish willful and
malicious desertion on the part of Wife. Neither the withdrawal of one party
from the marital residence for reasonable cause, such as the husband’s bad
conduct, nor the separation of the parties by consent, constitutes desertion.
In re Lodge's Estate, 134 A. 472, 473 (Pa. 1926).

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       [p]ossession of the [m]arital [r]esidence, which resulted in a
       [c]onsent [o]rder, wherein the Decedent agreed to move from the
       marital residence no later than mid-November of 2009, which he
       did. [Wife] arguably would have had a duty to support the
       Decedent, if he had filed an action against her for spousal support.
       He did not do so and [Wife] did not voluntarily support the
       Decedent from at least mid-November 2009 until his death almost
       four years later.

Trial Court Opinion, 12/16/16, at [3-4].

       Wife argues that the Orphans’ Court made its determination “without

any evidence or testimony” and that the record does not support a finding of

forfeiture. We agree.

       The burden of establishing a forfeiture, in the first instance, is
       upon those who claim such forfeiture[,] although the facts in a
       particular case may shift the burden to the claimant husband or
       wife to establish that there had been no . . . refusal to support.
       In addition, it must always be remembered that forfeitures are not
       favored in the law and must be strictly construed.

In re Wallace's Estate, 263 A.2d 421, 422 (Pa. 1970) (internal citations

omitted).

       Here, the burden was on the Appellees to prove that Wife had “willfully

neglected or refused to perform the duty to support” Husband for one year or

more prior to his death. However, the court held no hearing and took no

evidence, opting instead to render its decision based solely on the parties’

briefs.7   Accordingly, there is no evidentiary record to support the court’s
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7 We note that both the court and the parties ignored fundamental procedure
on numerous occasions in this matter. Wife never formally filed a petition for
adjudication, and the court did not require that she do so. Accordingly, there
is no official record of Wife’s claim to her intestate share. In addition, the
Appellees, as the party challenging Wife’s entitlement to her spousal share,



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conclusion that Wife had a duty to support Decedent, or that she willfully

neglected or refused to perform that duty. Indeed, the court’s finding is based

on nothing more than speculation that Wife “arguably would have had a duty

to support” Decedent. When a trial court purports to make findings of fact,

as it did here, there must be an evidentiary basis upon which to do so. Tecce

v. Hally, 106 A.3d 728, 736 n. 4 (Pa. Super. 2014). Because there is no

record evidence upon which the court could possibly have concluded that Wife

owed Decedent a duty of support, much less that she willfully neglected or

refused to perform that duty, the court erred in finding that she forfeited her

right to her spousal share.

       Order reversed.




____________________________________________


never filed formal objections, or any other pleading, requesting that Wife be
deemed to have forfeited her spousal share. Again, the court never required
such a pleading be filed. Finally, although there are clearly issues of fact in
this matter as to whether Wife owed Decedent a duty of support and, if so,
whether her failure to provide support was willful, the court inexplicably
determined that such issues did not exist, declined to hold a hearing, and
concluded it could decide the claim as a matter of law on the basis of briefs.
We find the court’s failure to create a complete record in this matter to be
troubling.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2017




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