J-A29002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: THE ESTATE OF CHARLES L.          :   IN THE SUPERIOR COURT OF
 SMALL                                    :        PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: JUANITA SMALL, AS             :
                                          :
                    Petitioner            :
                                          :
 AND ADMINISTRATOR OF THE                 :   No. 744 EDA 2018
 ESTATE OF CHARLES L. SMALL               :

                 Appeal from the Decree February 28, 2018
            In the Court of Common Pleas of Philadelphia County
                 Orphans' Court at No(s): No: 617DE-2017


BEFORE:    OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OTT, J.:                            FILED JANUARY 28, 2019

      Juanita Small, as Petitioner, and Administrator of the Estate of Charles

L. Small (Mother), appeals from the decree entered February 28, 2018, in the

Court of Common Pleas of Philadelphia County, that denied her “Petition for

Forfeiture of the Estate Pursuant to 20 Pa.C.S. § 2106” following an

evidentiary hearing. Based on the following, we affirm on the basis of the

orphans’ court’s well-reasoned opinion.

      The orphans’ court has ably summarized the facts and procedural

history underlying this appeal. Therefore, there is no need to set forth the

background of this case. See Orphans’ Court Opinion, 6/7/2018 at 1–3. We

simply state that, on July 11, 2013, Charles L. Small (Decedent) died intestate

without a spouse or children, at the age of 37.        Decedent had been a




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A29002-18



paraplegic since the age of 18 when he was shot.1          Following Decedent’s

death, the Estate of Charles L. Small (Estate) recovered $90,000.00 as the

result of the settlement of a medical malpractice action brought by the Estate.

Mother asserts Laverne Dollard (Father) forfeited any right to share in the

assets of the Estate under 20 Pa.C.S. § 2106(b).

    Mother presents the following two questions for our review:

       Whether the trial court erred when it concluded, against the
       weight of the evidence, that [Decedent] was not a dependent child
       under the Forfeiture Statute, 20 Pa.C.S.A. § 2106(b)?

       Whether the trial court erred by failing to apply the Forfeiture
       Statute to determine whether [Father] forfeited his right to take
       in the [E]state of Charles Small?

See Mother’s Brief at 4.2

       At the outset, we state our standard 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. Where the rules of law on which

____________________________________________


1 Mother’s petition for forfeiture avers Decedent was 16 years of age when he
became a paraplegic as a result of a gunshot. See Petition for Forfeiture
Pursuant to 20 Pa.C.S. § 2106(b), 5/9/2017, at ¶5. There was also testimony
that Decedent was 18 years of age when he became a paraplegic as a result
of a gunshot. See N.T., 2/26/2018, at 10, 43, 51, and 72. See also id. at
85.

2Mother timely complied with the orphans’ court’s order to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

                                           -2-
J-A29002-18


      the court relied are palpably wrong or clearly inapplicable, we will
      reverse the court's decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation omitted).

Relevant to this appeal, Section 2106(b) provides, in relevant part:

      (b) Parent’s share.--Any parent who, for one year or upwards
      previous to the death of the parent’s minor or dependent child,
      has:

      (1)   failed to perform the duty to support the minor or
            dependent child or who, for one year, has deserted the
            minor or dependent child …

      shall have no right or interest under this chapter in the real or
      personal estate of the minor or dependent child. The
      determination under paragraph (1) shall be made by the court
      after considering the quality, nature and extent of the parent’s
      contact with the child and the physical, emotional and financial
      support provided to the child.

20 Pa.C.S. § 2106(b)(1).

      Having examined the record, the briefs of the parties, the above-cited

statute, relevant case law, and the well-reasoned opinion of the Honorable

George W. Overton, we conclude Mother’s issues warrant no relief. Judge

Overton’s opinion fully addresses and properly disposes of the questions

raised by Mother in this appeal. See Orphans’ Court Opinion, 6/7/2018, at 3–

5 (finding, (1) the forfeiture statute, 20 Pa.C.S. § 2106(b), provides that a

parent’s share may be forfeited “previous to the death of the parent’s minor

or dependent child”; (2) the purpose of the statute is to protect minor or

dependent children who are not legally competent to effectuate a will, In re

Kistner, 858 A.2d 1226, 1228 (Pa. Super. 2004); (3) Decedent was 37 years

old at the time of his death, was not a minor, and based on the evidence, was

                                     -3-
J-A29002-18


not a dependent child; (4) Decedent was never adjudicated an incapacitated

person, declared incompetent, or appointed a guardian, (5) both Decedent’s

parents and his girlfriend/caregiver testified he could do everything but walk;

(6) Decedent had no mental impairment; (7) having a home health care aide

and collecting disability does not make one a dependent child under the

forfeiture statute; (8) as in Kistner, if Decedent believed Father failed to

perform his duty to support him or had deserted him, he could have executed

a last will and testament disposing of his estate accordingly; (9) Kistner’s

analysis of the forfeiture statute relative to an adult decedent’s estate as

opposed to a minor’s estate and its broad language is relative to and

controlling in the instant case; (10) based on the evidence submitted,

Decedent was not a dependent person; and (11) where the decedent is not a

minor or dependent child at the time of his death, the forfeiture provisions of

Section 2106(b) are inapplicable. We agree with this analysis.

      We add that Mother’s reliance on the definition of “dependent child” in

34 Pa. Code § 65.151 is misplaced as that provision applies to unemployment

compensation. Furthermore, Mother’s argument — that the orphans’ court’s

rationale that Decedent “could have executed a last will and testament” does

not apply here because Decedent had no assets and no reason to make a will

— is unpersuasive. The issue of assets/reason to make a will is irrelevant;

the issue is the protection of minor or dependent children who are not legally

competent to make a will.     See Kistner, supra, 858 A.2d at 1228 (“The


                                     -4-
J-A29002-18


purpose of the forfeiture statute is to prevent a parent, who has failed to carry

out his or her duty of support, from gaining a ‘windfall’ from a minor child’s

death. In addition, the statute protects minor or dependent children who are

not legally competent to effectuate a will[.]”) (emphasis added).

       Therefore, we affirm the Decree based upon the sound reasoning of the

orphans’ court.3

       Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/19




____________________________________________


3In the event of further proceedings, the parties are directed to attach a copy
of Judge Overton’s opinion, filed June 7, 2018, to this memorandum.

                                           -5-
Circulated 01/14/2019 01:35 PM
