J-A09015-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DREAMA ODELL,                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

ELLEN WEINGARTNER AND SUN
AMERICA ANNUITY LIFE,

                         Appellee                   No. 1433 EDA 2014


              Appeal from the Judgment Entered June 13, 2014
              In the Court of Common Pleas of Chester County
                      Civil Division at No(s): 12-01300


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 27, 2015

      Dreama Odell appeals pro se the June 13, 2014 judgment entered on

the verdict in favor of Edward Weingartner, III and Suzanne Law-Ticknor

after a bench trial. We affirm.

      The trial court succinctly stated the underlying facts and procedural

history as follows: properly

            On or about November 11, 1961, Edward Weingartner, Jr.
      was issued a life insurance policy by Mutual Benefits Life
      Insurance Company under policy #4175670A. The primary
      beneficiary of the policy was his wife, Ellen Weingartner, and the
      contingent beneficiaries were "children born of marriage of
      insured and primary beneficiary or legally adopted by insured."
      Mr. and Mrs. Weingartner had two children, Edward Weingartner,
      III and Susan Law-Ticknor. Mr. and Mrs. Weingartner were
      divorced in 1994.
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             Mr. Weingartner passed away on December 17, 2011. On
      December 20, 2011, Plaintiff faxed a letter, dated December 19,
      2011 and signed by her, to Sun America seeking payment of the
      proceeds of this life insurance policy. Attached to this letter was
      a Financial Transaction Request Form-Loan, dated December 14,
      2011. This document, which appears to have been signed by Mr.
      Weingartner, seeks a loan to the benefit of Mr. Weingartner in
      the amount of $15,000.00. A handwritten note on the form,
      written by Plaintiff, requests a form to change the beneficiary of
      the policy and further states: "In the interim, this statement will
      serve as the official and authorized change identifying the
      beneficiary as Dreama Odell." Following this note is a signature
      which appears to be that of Mr. Weingartner, and the date,
      December 14, 2011. A second copy of the loan document with
      Plaintiffs handwritten note was received by Sun America through
      the mail on December 21, 2011.

Trial Court Opinion, 8/4/14, at 1-2 (select quotation marks omitted)

(citations and footnotes omitted).

      On February 6, 2012, Appellant filed a pro se complaint against Sun

America Annuity and Life Assurance Company (incorrectly identified as Sun

America Annuity and Life) (“Sun America”) and Ellen Weingartner. Appellant

asserted that she was entitled to the proceeds of Mr. Weingartner, Jr.’s life

insurance policy because the decedent effectually named her has the

primary beneficiary of that policy before he died.    Sun America countered

with, inter alia, a counterclaim for interpleader that sought to add the

contingent beneficiaries, Edward Weingartner, III and Ms. Law-Ticknor, as

interpleader claimants.     Thereafter, the parties stipulated that upon

interpleading the $27,979.66 insurance proceeds into the trial court, Sun




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America would be discharged from any liability and dismissed from the case.

Sun America deposited the funds and was dismissed.

       Following a non-jury trial,1 the trial court entered the above referenced

order finding, “Plaintiff is not a beneficiary of the life insurance policy in

question.” Trial Court Order, 12/12/13, at 1 n.1. Essentially, the trial court

determined that, pursuant to the terms of life-insurance policy, a request to

change a beneficiary is deemed effective if received prior to the insured’s

death, that Appellant failed to establish that Sun America received the

document in time, and that she adduced insufficient evidence to establish

that Mr. Weingartner Jr. achieved substantial compliance with the policy’s

change-of-beneficiary requirements by utilizing every reasonable effort to

satisfy the insurer’s prerequisites. This pro se appeal followed the denial of

Appellant’s timely motion for post-trial relief.2

____________________________________________


1
 Appellant was represented by counsel during the non-jury trial; however,
counsel was granted leave to withdraw on March 20, 2014.
2
  As judgment had not been entered on the record pursuant to Pa.R.A.P. 301
when Appellant filed her notice of appeal, this appeal was premature. See
Vance v. 46 and 2, Inc., 920 A.2d 202 (Pa. Super. 2007) (appeal to
Superior Court can only lie from judgment entered subsequent to trial
court’s disposition of post-verdict motions, not from order denying post-trial
motions). Accordingly, on May 29, 2014, we issued a per curiam order
directing Appellant to file in the trial court a praecipe to enter judgment on
the verdict. We further advised that upon compliance with the per curiam
order, this Court would regard the premature notice of appeal as being filed
after the entry of judgment. The trial court entered judgment on the verdict
on June 13, 2014. Accordingly, the appeal is properly before this Court.
(Footnote Continued Next Page)


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      Appellant presents ten fundamentally redundant questions for our

review, which we reduce to the following succinct issue: Whether the trial

court erred in finding that Appellant failed to prove that she was entitled to

the proceeds of Mr. Weingartner, Jr.’s life insurance policy.

      The following legal principles are relevant to our disposition. First, we

observe that, absent an error of law, our review the trial court’s verdict is

highly deferential. In Kennedy v. Consol Energy Inc. __A.3d __, 2015 PA

Super 93, *12 (filed April 22, 2015) (quoting Stephan v. Waldron Elec.

Heating & Cooling LLC, 100 A.3d 660, 665 (Pa.Super. 2014)), we recently

reiterated our standard of review as follows:

      Our review in a non-jury case is limited to “whether the findings
      of the trial court are supported by competent evidence and
      whether the trial court committed error in the application of
      law.” We must grant the court's findings of fact the same weight
      and effect as the verdict of a jury and, accordingly, may disturb
      the non-jury verdict only if the court's findings are unsupported
      by competent evidence or the court committed legal error that
      affected the outcome of the trial. It is not the role of an
      appellate court to pass on the credibility of witnesses; hence we
      will not substitute our judgment for that of the factfinder. Thus,
      the test we apply is “not whether we would have reached the
      same result on the evidence presented, but rather, after due
      consideration of the evidence which the trial court found
      credible, whether the trial court could have reasonably reached
      its conclusion.”

      Next, as it relates to the questions posed in this appeal, we note that,

in order to make a valid change to the beneficiary of an insurance policy, the
                       _______________________
(Footnote Continued)




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insured must comply with requirements specified by the policy.            See

Carruthers v. $21,000, 434 A.2d 125 (Pa.Super. 1981).               However,

Pennsylvania jurisprudence has carved an exception to this doctrine when it

is determined that the insured has done everything that he reasonably could

do to comply with the policy.   Id. at 127.      In Carruthers, we observed,

“The intent of the insured will be given effect in our Commonwealth if he

does all that he reasonably can under the circumstances to comply with the

terms of the policy which permit a change of beneficiary.” Id.

     Instantly, Appellant’s claim is two-fold.    First, relying upon case law

that addressed the contract principles of offer and acceptance, Appellant

contends that the beneficiary designation was deemed received by Sun

America on the date that she placed it in the mail on Mr. Weingartner, Jr.’s

behalf. See Falconer v. Mazess, 168 A.2d 558 (Pa. 1961) (offer of stock

purchase was accepted by posting in mail); Chanoff v. Fiala, 271 A.2d 285,

287 (Pa. 1970) (option on real estate accepted by posting check in mail the

day before offer was due to expire); Russock v. AAA Mid-Atlantic Ins.

Co., 898 A.2d 636 (Pa.Super. 2006) (automobile insurance renewal payment

deemed received on date check was mailed because policy required

premiums to be submitted by mail).        Second, Appellant argues that Mr.

Weingartner, Jr. achieved substantial compliance with the terms of the policy

on December 15, 2011, by having Appellant note his intention to change the

beneficiary on the Sun America loan transaction form, signing the form near

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the hand-written notation, and directing Appellant to mail the form to Sun

America.     The crux of the latter argument challenges the weight of trial

court’s determination that Mr. Weingartner, Jr. did not effectuate a change

of beneficiary on his insurance policy before he died.

        In rejecting Appellant’s initial position, the trial court concluded that

the mail-box exception that Appellant attempted to invoke was inapplicable

in this case because the insurance policy required that it receive changes to

the designation of beneficiaries and alterations of payment options for

beneficiaries prior to the death of the insured. Specifically, the life insurance

policy provided,

              Upon request, the owner may change the beneficiary. The
        owner may also request that all or part of the proceeds be
        placed under a payment option for a beneficiary who is a natural
        person and who id to receive payment in his or her own behalf.

              We must receive any such request before the death
        of the insured. When we approve the request, any prior
        designation of beneficiary and any prior agreement to
        place the proceeds under a payment option will cease to
        be in effect.

See Mutual Benefit Life Insurance Policy, ¶ 21.3 (emphasis added).            As

Appellant did not assert that Sun America received the change-of-benefit

designation prior to Mr. Weingartner, Jr.’s death, the trial court concluded

that the request was not effective.

____________________________________________


3
    Sun America is the successor to Mutual Benefit Life Insurance Company.



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      As it relates to Appellant’s remaining assertions, the trial court found

that Appellant failed to adduce any credible evidence that Mr. Weingartner,

Jr. utilized every reasonable effort to comply with the policy requirements.

Specifically, the trial court determined that Appellant’s testimony regarding

Mr. Weingartner, Jr.’s efforts to change the beneficiary lacked credibility and

conflicted with other evidence in the certified record.        The court doubted

Appellant’s    testimony   concerning   both   whether   Mr.    Weingartner,   Jr.

requested a change of beneficiary form from Sun America and whether he

used reasonable efforts to tender the self-styled request that Appellant

eventually submitted to the insurance company after his death. Additionally,

trial court found Appellant’s characterization of her relationship with Mr.

Weingartner, Jr. as “life partners” was suspect in light of the fact that she

sued him on at least one occasion over sales commission that she believed

she was owed. N.T. 12/12/13, at 24-25. While the testimony regarding the

prior lawsuits was only tangentially related to Mr. Weingartner, Jr.’s efforts

to change his beneficiary, the trial court considered the dichotomy between

Appellant’s representations and actions revealing as to her general lack of

credibility.

      After a thorough review of the parties’ briefs, pertinent law, and the

certified record, we conclude that the Honorable Jacqueline C. Cody cogently

addressed Appellant’s arguments in her well-reasoned opinion entered on

August 4, 2014, and we affirm on the bases contained therein.

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J-A09015-15



     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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