J-A02011-16

                             2017 PA Super 148



PATRICIA BRITTAIN A.K.A., PATRICIA           IN THE SUPERIOR COURT OF
MAINES, ADMINISTRATOR OF THE                       PENNSYLVANIA
ESTATE OF BARBARA ANN MAINES

                        Appellant

                   v.

HOPE ENTERPRISES FOUNDATION
INCORPORATED, AND/OR HOPE
ENTERPRISE INC., AND/OR WILLIAM
BIRT, AND/OR HEATHER PETERS
AND/OR SELECTIVE INSURANCE
COMPANY OF AMERICA

                        Appellees                 No. 875 MDA 2015


                    Appeal from the Order April 21, 2015
              In the Court of Common Pleas of Luzerne County
                     Civil Division at No: 10467-CV-2010


PATRICIA BRITTAIN A.K.A., PATRICIA           IN THE SUPERIOR COURT OF
MAINES, ADMINISTRATOR OF THE                       PENNSYLVANIA
ESTATE OF BARBARA ANN MAINES

                        Appellant

                   v.

HOPE ENTERPRISES FOUNDATION
INCORPORATED, AND/OR HOPE
ENTERPRISE INC., AND/OR WILLIAM
BIRT, AND/OR HEATHER PETERS
AND/OR SELECTIVE INSURANCE
COMPANY OF AMERICA

                        Appellees                 No. 950 MDA 2015


              Appeal from the Judgment Entered April 30, 2015
              In the Court of Common Pleas of Luzerne County
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                        Civil Division at No: 10467-CV-2010


BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*

OPINION BY STABILE, J.                                      FILED MAY 17, 2017

        In these consolidated appeals, Patricia Brittain, a.k.a. Patricia Maines

(“Brittain” or “Appellant”), as Administrator of the Estate of Barbara Ann

Maines, appeals from the order of the Court of Common Pleas of Luzerne

County entered April 21, 2015, finding that Brittain was not entitled to a new

trial limited to a determination of punitive damages,1 and from the judgment

entered on April 30, 2015. Brittain argues that the trial court erred in failing

to hold a new trial limited to the award of punitive damages assessed

against Appellee, Hope Enterprises Incorporated (“Hope”), and in failing to

calculate and include post-judgment interest for compensatory damages

from the date of the jury’s verdict.             Appellees, Hope and William Birt

(“Birt”), did not file cross-appeals. However, on July 27, 2015, they filed an

“Emergency Application to Remand to the Trial Court for Hearing on Newly-

Discovered Evidence Regarding Possible Fraud on the Court with Regard to

Plaintiff’s Wrongful Death Claim” (“Emergency Application”).         After careful

review, we remand for the trial court to decide the issues raised in the

Emergency Application.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Brittain’s appeal from the April 21 order is an interlocutory appeal by
permission. See 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 1311(b).



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        By way of background, on October 15, 2012, a jury returned a verdict

in this wrongful death and survival action2 stemming from the death of 31-

year old Barbara Ann Maines (“Barbara”), a resident of a Hope group home

who suffered from cerebral palsy and was unable to speak or walk. Barbara

was a passenger in a van operated by Hope employee Birt that collided with

a vehicle operated by Appellee, Heather Peters (“Peters”).3           Barbara

subsequently died from a lacerated liver that was not timely reported. The

jury found Hope and Birt negligent and awarded Appellant, in her capacity as

administrator of the Barbara’s estate, a total of $3,018,628.86 in damages.

The award consisted of $2,018,628.86 in wrongful death damages for

medical bills, funeral expenses, and loss of services, to benefit Sharon

Moyer—represented to be Barbara’s mother, and $1,000,000 for survival

damages to Barbara’s estate. The jury also awarded $100,000 in punitive

damages against Hope only. After appeal to and remand from this Court, we

directed the trial court to conduct proceedings to determine the amount of

delay damages to which Appellant was entitled.

        On April 21, 2015, a hearing was held before the trial court at which

time the court anticipated wrapping up pending matters to calculate delay

damages in accord with our directive.            N.T., Hearing, 4/21/15, at 2.
____________________________________________


2
    42 Pa.C.S.A. §§ 8301 (wrongful death) and 8302 (survival).
3
  Prior to trial, Peters’ insurance carrier tendered Peters’ $15,000 liability
limits. The jury did not attribute any negligence to Peters.



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Instead, Appellant’s counsel argued that Appellant still was entitled to a new

trial limited to the issue of punitive damages. The trial court disagreed, did

not proceed to calculate delay damages, and certified for appeal the issue of

whether Appellant was entitled to a new trial on delay damages as a

controlling issue of law.

      Immediately after that hearing, Appellant’s counsel apparently hand

wrote a praecipe directing the prothonotary to enter judgment in favor of

Brittain and Barbara in their individual capacities, despite the fact that the

verdict was entered only in favor of the estate and Brittain as administrator

of the estate. Id. at 64. Appellant’s praecipe also requested that judgment

be entered against two nonparties to this suit, Selective Insurance Company

of America (“Selective”) and the Hope Foundation, Inc. (“Hope Foundation”).

N.T., Hearing, 4/28/15, at 3-4.

      Selective posted the appeal bond from the judgment entered in this

case. Id. at 10-11.     In accordance with Pa.R.A.P. 1734(c), liability against

a surety may be enforced on application in the lower court. The record does

not reflect that Appellant made any such application before entering

judgment against Selective.     It is not clear on what basis Appellant filed

judgment against the Hope Foundation. Appellees’ counsel filed motions to

strike these judgments.

      On April 28, 2015, the trial court reconvened the hearing to entertain

Appellees’ motion to strike the judgments and to consider the assessment of

delay damages. Id. at 2. At the hearing, Appellees represented that they

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were prepared to make payment on the judgment once it was properly

entered. Id. at 17.     Appellees asked to pay the judgment into court and

requested a hearing regarding distribution to establish the proper parties to

the case, in an effort to avoid future issues claiming they made payment to

the wrong entities. Id. at 17-18. Appellant’s counsel strenuously objected,

pointing out to the court that only he and his clients would be payees on the

check.    Id. at 21-22. He explained he would put the money into his trust

account and file appropriate paperwork in the county where the estate was

raised and where a judge would decide distribution. Id. In response, the

trial court explained it was obligated to determine the amount of delay

damages under this Court’s remand order.          The court would then decide

what to do with counsel’s information. Id. at 25.

     After discussing delay damages, the trial court asked Appellees’

counsel if there was a legitimate concern as to whether the money would be

paid out wrongfully.     Id. at 30.       In response, counsel for Appellees

presented the petition for probate and grant of letters filed in Columbia

County,    reflecting   that   Brittain     was   Barbara’s   sister,   despite

acknowledgement by Appellant’s counsel during trial in Luzerne County that

Brittain was Barbara’s aunt. Id. at 30, Exhibit 2. Appellees’ counsel then

explained that Barbara’s mother, Sharon Moyer, had renounced her right to

administer Barbara’s estate because she was not competent.          Id. at 31.

Barbara’s siblings likewise renounced. Id. Counsel explained that although

Sharon Moyer was not competent, there was no evidence that a legal

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guardian had been appointed for her. Id. Therefore, it was not clear how

money from Barbara’s estate would be distributed.        Id.   Counsel further

explained that during trial Sharon Moyer was identified as Barbara’s

biological mother, yet was identified in the application for letters of

administration as Barbara’s sister.      Id. at 34.     Additionally, Marcella

Rheppard and Leslie Gross were identified as Barbara’s sisters in the

application for letters of administration, yet they were her aunts. Id.

Edward Maines, apparently Barbara’s uncle, likewise was represented as her

brother in the application for letters of administration. Id. The trial court

found these revelations to be shocking. Id.

      In response, Appellant’s counsel admitted there was an error in the

application for letters of administration, but regardless, represented to the

court that he would not distribute any money without an order from the

Columbia County Court where Barbara’s estate was opened. Id. at 35-36.

It was counsel’s opinion that the trial court had no jurisdiction to decide

where the money went, and he would seek an order from the Columbia

County Court directing distribution of Barbara’s estate. Id. at 36.

      The trial court stated that no court in this Commonwealth would allow

issuance of a check under circumstances where letters may have been

fraudulently or improvidently granted.    Id. at 37.   It was the trial court’s

opinion that the Columbia County Court was the tribunal to review the

propriety of Brittain’s appointment as administrator and to direct disposition

of the verdict proceeds. However, the court noted it would be careless for

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the trial court to simply have the money paid over to the administrator. Id.

at 37, 40-41.   Appellant’s counsel strenuously objected once again to the

trial court not ordering that the money be paid and represented that not a

single cent of the money would be paid until there was a further order of

court. Id. at 41-42. The trial court reiterated its concern with the estate,

and noted that if Sharon Moyer is the only biological heir as mother of

the decedent, she would be entitled to the entire wrongful death award.

Id. at 44 (emphasis added).       Nonetheless, the court indicated that with

respect to an estate, a personal representative must act on its behalf and

any judgment would have to be payable to the personal representative and

not to the estate itself. Id. at 44-45.

      Following a recess, there were extensive discussions and arguments

on delay damages and post-judgment interest. Id. at 45-60. The trial court

then announced what it would order by way of judgment.         First, the trial

court struck the judgments entered against Selective and the Hope

Foundation as having been inappropriately entered and having been entered

while a motion for delay damages was outstanding. Id. at 63. The court

likewise struck the individual judgments.   Id. at 64.   It then ordered that

“judgment be entered in favor of Patricia Brittain, a.k.a. Patricia Maines,

administrator of the estate of Barbara Ann Maines, plaintiff, and against

Hope Enterprises, Inc. and William Birt, defendants, in the initial amount of

$3,018,628.87.” Id. at 65. The court added delay damages calculated at

$157,463.04, for a total judgment in favor of plaintiff and against the

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defendants in the amount of $3,176,091.90, plus interest and costs.          Id.

Further, the trial court ordered that “judgment be entered in favor of Patricia

Brittain, a.k.a. Patricia Maines, administrator of the estate of Barbara Ann

Maines, plaintiff, and against Hope Enterprises, Inc. in the amount of

$100,000 constituting the punitive damages award plus interest and costs as

permitted by law.”4        Id. at 66.     The court then indicated it knew of no

authority that would allow the judgment to be paid into court, as this was

not an interpleader action. Id. The court deferred to the jurisdiction of the

Columbia County Court to review the matters that had been raised, and

indicated there was nothing to prevent a judgment debtor from seeking

emergency consideration of matters of great concern before the proper

tribunal. Id. at 66-67.

       Appellees’ counsel once again voiced his concern about making

payment directly to plaintiffs after which the court encouraged counsel to

include a stipulation with regard to payment of the judgment monies. Id. at

70. Ultimately, Appellant’s counsel indicated that he would not agree to any

stipulation and would file that day a writ of execution and would take proper

appeals. Id. at 74. In response, Appellees’ counsel requested, based upon
____________________________________________


4
  The jury slip awarding punitive damages is silent as to whether these
damages were awarded in connection with the wrongful death action, the
survival action, or both. We presume these damages were awarded in
connection with the survival action, as Pennsylvania does not permit the
award of punitive damages in a wrongful death action. See Harvey v.
Hassinger, 461 A.2d 814, 815-816 (Pa. Super. 1983).



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the comments by Appellant’s counsel, a brief stay of execution to resolve the

matter. Id. at 75. Appellant’s counsel reconfirmed that he would execute

on the judgments as soon as he left court that day. Id. At that point, the

trial court indicated it would enter its order that afternoon and would decide

whether counsel had to come in for an emergency motion for stay. Id. at

76.   The trial court explained it had tried to create a framework as an

accommodation on how monies would be paid. However, if the parties were

not able to come to terms, the court would not order payment, since that

would set off a whole other series of issues.     Id.   The trial court again

encouraged counsel to revisit the matter and announced its availability in

chambers should counsel reach an accord. Id.

      At no time during the April 21 or April 28, 2015 hearings did the issue

ever arise, nor did the facts suggest, that Sharon Moyer—represented at trial

to be Barbara’s biological mother—was not legally entitled to bring or

recover on a wrongful death action as Barbara’s parent.

      The trial court’s April 28, 2015 orders were entered on the trial court

docket on April 30, 2015. Brittain filed appeals from both the April 21 and

April 30 orders challenging the denial of a new trial on punitive damages and

the failure of the trial court to calculate and include in the judgment post-

judgment interest.




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       On July 27, 2015, Appellees filed in this Court their Emergency

Application.     On July 29, we issued an order providing seven days for

Appellant to respond. Appellant timely filed an answer on August 5, 2015.5

       In their Emergency Application, Appellees represented that they had

discovered     evidence    strongly    suggesting   that   Brittain    misrepresented

material facts in her application for letters of administration that, if proven,

would establish that none of Barbara’s living family members—including

Sharon Moyer, identified by Brittain at trial to be Barbara’s mother—had

legal standing to assert a wrongful death claim under Pennsylvania’s

wrongful death statute. Emergency Application at ¶ 3.                 More specifically,

Appellees represented that after the initial discrepancies were found and

brought to the trial court’s attention, they further discovered in reviewing

documents filed in the Orphan’s Court in Snyder County that Barbara had

been legally adopted by her maternal grandmother, Madeline Maines,

thereby terminating Sharon Moyer’s parental rights. Emergency Application

at ¶ 25. October 2000 documents from the Snyder County Orphan’s Court

indicated that Barbara was adjudicated incapacitated and that her sister,


____________________________________________


5
   Prior to Appellees’ filing of the Emergency Application, Appellant was
represented by Michael J. Pisanchyn, Jr., Esquire. On July 31, 2015, Howard
J. Bashman, Esquire, entered his appearance as co-counsel for Appellant,
and subsequently filed the August 5, 2015 answer as well as Appellant’s
brief.




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Brittain, was appointed her legal guardian.         These documents further

confirmed that Barbara was not capable of providing “services” to anyone,

including her then legal parent, Madeline Maines. Emergency Application at

¶¶ 26, 28. Appellees argue that because Barbara had no spouse or children

at the time of her death and because her parent Madeline Maines was

deceased, no one had standing to recover the $2,000,000 in wrongful death

damages. Appellees contended that if these facts were correct, the entire

wrongful death and survival verdict and judgment must be set aside.6

Emergency Application at ¶ 41.

       Even more troubling is Appellees’ averment that on April 30, 2015, two

days after their court hearing, Brittain’s counsel, Michael J. Pisanchyn, Jr.,

filed a “Petition to Distribute Funds” with the Court of Common Pleas of

Columbia County, Emergency Application at ¶ 36,7 and took a 48% fee

before depositing the judgment proceeds with the Columbia County Court of

Common Pleas. Emergency Application at ¶ 36, n. 11. This is problematic

on many levels.       First, it appears counsel took these fees before securing

court approval. Further, it is not clear whether these fees were paid only for
____________________________________________


6
  Appellees maintain that much of the testimony in the wrongful death action
influenced damages awarded in the survival action. We offer no opinion as
to that argument, leaving that issue for the trial court upon remand.
7
  It is not clear whether counsel’s representation to the trial court, pledging
that no funds would be distributed without a court order, was subject to an
agreeable stipulation.




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the wrongful death damages or for both wrongful death and survival

damages.       If there is merit to Appellees’ Emergency Application, it is

uncertain whether counsel is entitled to any fees.      Moreover, as Appellees

aver, it is questionable whether Brittain or her counsel advised the Columbia

County Orphans’ Court that Sharon Moyer’s parental rights were terminated

by virtue of her legal adoption by Madeline Maines, even though it is alleged

Brittain and her family members were uniquely aware of this familial history.

Emergency Application at ¶ 39.

         Citing Hornick v. Bethlehem Mines Corp., 165 A. 36, 37 (Pa. 1933),

Appellees argue that this newly-discovered evidence entitles them to a new

trial.   They contend this evidence was discovered after trial, it could not

have been obtained at trial by reasonable diligence, it is not cumulative or

offered to impeach credibility, and it will likely compel a different result. If

Appellees’    averments   are   confirmed,    they   assert,   their   Emergency

Application has substantial merit and this Court should remand this matter

to the trial court to consider this after-discovered evidence.

         Appellant counters that we should deny Appellees’ application and

address the issues raised in Appellant’s brief.      She claims Appellees have

waived any challenge to Appellant’s capacity to sue because they failed to

assert a challenge by preliminary objection or in answer to Appellant’s

complaint.     Appellant’s Answer in Opposition, 8/5/15, at 2 (citing Drake

Mfg. Co. v. Polyflow, Inc., 109 A.3d 250, 257-58 (Pa. Super. 2015)).

Further, she argues Appellees raised questions about Barbara’s familial

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relationships at the April 28, 2015 hearing but did not file an appeal or

cross-appeal from the April 30, 2015 orders entered following the hearing.

Id.   Appellant also complains that the “alleged ‘possible fraud’” Appellees

complain of “is not the type of fraud that is sufficient to reopen a judgment

based on supposedly newly discovered evidence.”                Id. at 9-10 (citing and

quoting Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa. Super.

1986)).

       With regard to the lack of a cross-appeal, we acknowledge that

Appellees requested during the April 28, 2015 proceeding that the court

conduct a hearing.        However, the request was made in reference to the

demand by Appellant’s counsel that payment be made to Appellant, because

it was not clear if a legal guardian had been appointed to receive funds on

behalf of Sharon Moyer, the wrongful death beneficiary.                N.T., Hearing,

4/28/15, at 31. This is far different from the contention now being raised in

Appellees’    Emergency       Application      that,   based   upon   after-discovered

evidence, Sharon Moyer was not Barbara’s legal parent and, therefore,

Appellant was not entitled to bring a wrongful death action on her behalf.8

If, as Appellees contend, this after-discovered evidence became known to

them only after the April 28 hearing, then they in fact are entitled to have


____________________________________________


8
  See 42 Pa.C.S.A. § 8301(b), which provides in relevant part that “the right
of action [for wrongful death] created by this section shall exist only for the
benefit of the spouse, children or parents of the deceased.”



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the trial court hold a hearing on their Emergency Application. The lack of a

cross appeal does not defeat their application.

      We also reject Appellant’s suggestion that the alleged possible fraud is

not the type of fraud warranting reopening a judgment.          As Appellees’

correctly recognize, our Supreme Court has held that “[c]ourts, when

appealed to, will prevent the triumph of fraud, and, where a judgment has

been obligated by fraud, no court will permit its records and processes to be

the instruments of infamy.”     Appellees’ Brief at 16 (quoting Sallada v.

Mock, 121 A. 54, 55 (Pa. 1923)). See also Commonwealth v. Harper,

890 A.2d 1078, 1082 (Pa. Super. 2006) (“courts simply will not countenance

fraud, and when a decision is obtained through its use, the court retains the

inherent power to rescind that decision”).

      Appellant argues that only “‘extrinsic’ fraud, and not ‘intrinsic’ fraud,

can be used to reopen an otherwise final judgment.” Appellant’s Reply Brief

at 23 (citing McEvoy v. Quaker City Cab Co., 110 A. 366 (Pa. 1920)).

While Appellant accurately states the law, we disagree with her assertion

that the fraud alleged by Appellees does not constitute extrinsic fraud. As

our Supreme Court explained in McEvoy:

      By the expression ‘extrinsic or collateral fraud’ is meant some
      act or conduct of the prevailing party which has prevented a fair
      submission of the controversy. . . . Where the alleged perjury
      relates to a question upon which there was a conflict, and it was
      necessary for the court to determine the truth or falsity of the
      testimony, the fraud is intrinsic, and is concluded by the
      judgment, unless there be a showing that the jurisdiction of the
      court has been imposed upon, or that by some fraudulent act of

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      the prevailing party the other has been deprived of an
      opportunity for a fair trial.

Id. at 368. See also Black's Law Dictionary 686 (8th ed. 2004) (defining

“extrinsic fraud” as “[d]eception that is collateral to the issues being

considered in the case; intentional misrepresentation or deceptive behavior

outside the transaction itself (whether a contract or a lawsuit), depriving one

party of informed consent or full participation”). Further,

      Extrinsic fraud operates, not upon the matter pertaining to the
      judgment, but the manner in which it is procured[.]

      In 34 Corpus Juris, 282, it is stated that “fraud practiced upon
      the court is always ground for vacating the judgment, as where
      the court is deceived or misled as to the material circumstances,
      or its process is abused, resulting in the rendition of a judgment
      which would not have been given if the whole conduct of the
      case had been fair.”

Willetts v. Willetts, 96 Pa. Super. 198, 206 (Pa. Super. 1929) (citation

omitted).

      In her Amended Complaint, Appellant represented that Sharon Moyer

was Barbara’s mother. Amended Complaint at ¶ 3. Sharon Moyer testified

as if she were Barbara’s mother and offered no hint that Barbara had been

adopted by Madeline Maines.          As Appellees observe, “In pleadings,

testimony and briefs in the trial court and this court, [Appellant] referred to

Sharon Moyer as [Barbara’s] mother.” Appellees’ Brief at 17 (with footnote

8, identifying instances at trial referring to Sharon Moyer as Barbara’s

mother). The status of Sharon Moyer as Barbara’s mother, and her standing

to pursue a wrongful death claim, was collateral to the issue being

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considered in the underlying action. Appellant’s conduct in misrepresenting

Sharon Moyer’s status prevented a fair submission of the controversy

because her parental rights had in fact been terminated, stripping her of

standing to pursue a wrongful death action. See, e.g., E.T.S. v. S.L.H., 54

A.3d 880, 883 (Pa. Super. 2012) (“[a] decree of adoption terminates forever

all relations between a child and his biological parents and severs the child

entirely from its own family tree and engrafts it upon its new parentage.”).

Further, there was no conflict in the testimony offered by Sharon Moyer or

her siblings, including Appellant, with regard to the relationship between

Barbara and Sharon Moyer that required the court to determine the truth or

falsity of the testimony.     In fact, there was no question as to the

relationship. As the trial judge observed, “[T]he [c]ourt’s clear recollection

was that [Sharon Moyer] was identified as the biological mother of the

decedent.” N.T., Hearing, 4/28/15, at 34. Therefore, we reject Appellant’s

assertion that any “possible fraud” was intrinsic.   See McEvoy, 110 A. at

368.

       Also supporting our conclusion that the fraud was extrinsic is the fact

Appellant changed course in her Columbia County Petition for Distribution

where she represented to that court that Sharon Moyer was Barbara’s

“biological mother.” Petition for Distribution, 4/30/15, at ¶¶ 2, 20, 24. That

Sharon Moyer was Barbara’s biological mother has no legal significance in

light of the fact Barbara was adopted by the now-deceased Madeline Maines,


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Sharon Moyer’s mother. E.T.S. v. S.L.H., supra. By stating a “fact” that

has no legal consequence, it appears Appellant is attempting to conceal the

fact that no one, including Sharon Moyer, had legal standing to pursue the

wrongful death action, the proceeds of which are a subject of the petition to

distribute.

      We conclude that knowingly maintaining a wrongful death action on

behalf of someone for whom that right of action does not exist prevents a

fair submission of the controversy and constitutes fraud on the court that

warrants setting aside the judgment wrongly obtained. Further, for reasons

already explained, we reject the argument that Appellees waived a challenge

to Appellant’s capacity to sue on procedural grounds.

      Based on Appellees’ Emergency Application, we find that a remand is

warranted. However, this matter is complicated by the fact that, according

to the Emergency Application, Appellant’s counsel already has filed a petition

for distribution before the Columbia County Orphan’s Court, where Barbara’s

estate has been opened. It is not known whether Appellees are entitled to

notice of those proceedings, if they have been given notice, whether they

are participating in those proceedings, or whether they would be permitted

to intervene.   The question therefore arises whether the orphans’ court or

the trial court has jurisdiction over the questions relating to distribution or

standing in this wrongful death and survival action.




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         While the jurisdiction of the orphans’ court is mandatory with respect

to certain matters, that court may also exercise jurisdiction over other

matters where there are substantial questions concerning anything within its

mandatory jurisdiction. See 20 Pa.C.S.A. §§ 711, 712. It is clear that the

orphans’ court must approve any settlement or compromise of a survival

action. Moore v. Gates, 580 A.2d 1138, 1141 (Pa. Super. 1990) (en banc).

If a lawsuit has been filed, however, then court approval of a survival action

can be obtained either in the orphans’ court or in any other court in which

the action is pending. 20 Pa.C.S.A. § 3323(b). On the other hand, where

the only heirs entitled to recover for the wrongful death of a decedent are

competent adults, they may settle their claims without court approval. Id.

         In this case, where a wrongful death and survival action has been tried

to verdict, either the trial court or the orphans’ court may consider issues

relating to distribution of the judgment proceeds or standing. While either

the orphans’ court or trial court may pass upon the distribution of the

judgment proceeds in a wrongful death and survival action, it is known that

local rules of court commonly direct which division of court is to hear these

matters, typically dependent upon whether the matters have been settled or

tried to verdict. In this case, as stated, distribution and resolution of issues

raised by Appellees may be heard in either the trial court or the orphans’

court.




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      Again, this matter is somewhat complicated because appeals are

currently pending from orders of the trial court in Luzerne County and,

according to the Emergency Application, a petition for distribution has been

filed with the Orphans’ Court of Columbia County.       It would appear that

presently we have two courts involved in a matter with overlapping issues.

For sake of order and judicial efficiency, these proceedings need to be

coordinated.      Since the matters raised by the Appellees’ Emergency

Application go to the core of the trial proceedings, it would make sense that

the trial court decide the application.   If Appellees’ Emergency Application

proves meritorious, action affecting the judgments would be required by the

trial court that would, in turn, necessarily affect the proceedings before the

orphans’ court.     It would seem that the orphans’ court should stay any

distribution proceedings pending the outcome of any after-discovered

evidence proceedings before the trial court.

      Appellees’ Emergency Application granted as outlined above.        Case

remanded for further proceedings before the trial court consistent with this

Opinion. In light of our disposition, we decline to reach the issues raised by

Appellant.     In the event the trial court determines there is no merit to

Appellees’ Emergency Application, Appellant may reassert her issues before

this Court.




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      Appellees’   Emergency   Application   granted.   Case   remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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