J-S24020-18

                                2018 PA Super 276


 JANICE BERRY,                            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
               v.                         :
                                          :
                                          :
 CHARLES D. BERRY                         :
                                          :   No. 1766 MDA 2017


                Appeal from the Order Entered October 16, 2017
                In the Court of Common Pleas of Clinton County
                       Civil Division at No(s): 1073-2013


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

CONCURRING AND DISSENTING STATEMENT BY OLSON, J.:

                                                    FILED OCTOBER 11, 2018

      I agree with almost everything contained in the learned majority’s

meticulous and well-written opinion. However, I would not hold that the death

of Charles D. Berry (“Husband”) automatically abates the divorce litigation.

Instead, I would remand for a hearing, for the trial court to determine whether

Husband and Janice Berry (“Wife”) were competent during the underlying

proceedings.

      As the majority notes, there are a number of references in the certified

record as to Husband’s and Wife’s competency and alleged dementia.

However, I do not believe that we, as an appellate court, should make the

determination based on the record before us that Husband and Wife were, in

fact, incompetent and, therefore, the divorce decree must be vacated. This
J-S24020-18



determination should be made by the trial court in the first instance. 1 See

Pa.R.C.P. 2056(d). Upon remand, an evidentiary hearing should be held by

the trial court to determine whether both Husband and Wife were competent

during the divorce proceedings.2 If the trial court finds that they both were

competent, then I believe that the divorce decree should remain in effect,

because the trial court has already determined that grounds for divorce were

established under 23 Pa.C.S.A. § 3301(d). On the other hand, if the trial court

determines that either or both parties were incapacitated during the

underlying proceedings, then I agree that the divorce litigation would abate,

as the incapacitated person was not represented by a guardian or guardian ad

litem. If this were to occur, the trial court should vacate the divorce decree

and the subsequent equitable distribution order. Thus, on this limited basis,

I dissent.




____________________________________________


1Even though Husband has died, I believe that the trial court can still make a
determination upon remand as to the competency of both Husband and Wife
at the time of the divorce proceedings. In will contests, trial courts are called
upon to make a determination as to a decedent’s competency at the time a
will is executed. Similarly, the trial court can make a decision as to Husband’s
and Wife’s competency at the time of the divorce proceedings.

2 This determination may be made by the trial court. Contrary to the trial
court’s statement made during the proceedings (Notes of Testimony, 7/5/17,
at 3), the question of the parties’ competency need not be made by the
orphans’ court. See Pa.R.C.P. 2056(e) (“A finding of competency shall be
based either on evidence presented to the court in which the action is pending,
or on an adjudication of incapacity entered by a court of competent
jurisdiction.”).

                                           -2-
J-S24020-18




              -3-
