Estate of Fiorento Cerullo, Appeal of: Velleca, A. ( 2021 )

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2021 PA Super 27IN RE ESTATE OF FIORENTINO CERULLO IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: EXECUTRIX, ANTONIETTE
VELLECA
No. 1354 EDA 2020
Appeal from the Order Dated June 2, 2020
In the Court of Common Pleas of Northampton County
Orphans’ Court at No: 4818-0047
BEFORE: STABILE, J., NICHOLS, J. and COLINS, J.*
OPINION BY STABILE, J.: Filed: February 25, 2021
Appellant, Antoniette Velleca (“Executrix”), personal representative of
the estate of Fiorentino Cerullo, deceased (“Husband”), appeals from an order
granting the objections of Cathy Cerullo (“Wife”) to the first and final account
of Husband’s estate. Husband and Wife married four weeks before Husband
died of cancer. The Orphans’ Court held that Husband made a valid inter vivos
gift of a 1988 Porsche, a 2001 BMW motorcycle and a 2004 BMW motorcycle
(“the vehicles”) to Wife shortly before his death. Executrix argues that the
Dead Man’s Act, 42 Pa.C.S.A. § 5930, precluded testimony by Wife and several
witnesses that Husband intended to deliver, and in fact delivered, the titles to
the vehicles to Wife. We hold that the Dead Man’s Act precludes Wife’s
testimony concerning delivery of the titles, and without this testimony, there
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* Retired Senior Judge assigned to the Superior Court.
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is insufficient evidence to support Wife’s claim of any inter vivos gift.
Accordingly, we reverse.
On December 8, 2017, Husband and Wife executed prenuptial
agreements and then married. On January 5, 2018, Husband died. He was
survived by Wife and his two children. Later in January, the Register of Wills
admitted to probate a will that Husband executed on November 22, 2017 and
granted letters testamentary to Executrix, Husband’s sister. Executrix filed a
first and final account that included the vehicles as assets of Husband’s estate.
On October 20, 2019, Wife filed objections to the first and final account
claiming that Husband gifted the vehicles to her before his death, so she
owned the vehicles instead of the estate.
On January 27, 2020, the Orphans’ Court held an evidentiary hearing
relating to Wife’s objections. Executrix, the first witness, testified that the
vehicles were titled in Husband’s name at the time of his death. Executrix
pointed out that before Husband died, he wrote a note transferring another
car, a Mercedes, to a non-party, Judy Chapman. Husband did not notarize
the note because he was too ill to travel to a notary. The Mercedes was
transferred to Chapman one day before Husband’s death.
Wife presented three witnesses: (1) her neighbor, Kathy Moore; (2) her
brother Scott Shellhammer; and (3) herself. All three witnesses testified over
Dead Man’s Act objections lodged by Executrix. Moore testified that during a
party on September 3, 2017, Husband told her that he wanted Wife to have
his Porsche because of the great times they had together in the car.
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Shellhammer testified that during Thanksgiving in 2017, Husband told him
that he was giving the vehicles to Wife. Husband and Shellhammer had a
detailed conversation about transporting the vehicles from Husband’s
residence in Bethlehem, Pennsylvania to Wife’s residence in Glenmoore,
Pennsylvania. Shellhammer stated the vehicles were never moved to
Glenmoore due to the need for multiple drivers and Husband’s declining
health. The vehicles remained at Husband’s residence at the time of his death.
Wife, the final witness, was the only witness who testified about the
actual delivery of the titles and keys to the vehicles. Wife testified that on
December 5, 2017, Husband handed her the titles and keys to the vehicles,
and she placed the keys and titles in or on the respective vehicles in Husband’s
garage. There were no notations on the titles indicating that Husband was
transferring the titles to Wife. Instead, the titles were endorsed with
unnotarized signatures in spaces captioned “Seller.” Wife testified that she
did not see Husband sign the titles, but she claimed that the signatures on the
titles were consistent with Husband’s signature. Husband continued to
maintain insurance coverage on the vehicles until his death.
Finally, a notarized prenuptial agreement dated December 8, 2017 was
admitted into evidence without objection by Executrix. Therein, both Husband
and Wife listed their assets, but neither Husband nor Wife listed the vehicles
as assets.
On June 2, 2020, the court granted Wife’s objections to the first and
final account. On June 17, 2020, Executrix timely appealed to this Court. See
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Pa.R.A.P. 342(a)(6) (appeal may be taken as of right from Orphans’ Court
order determining interest in real or personal property). Both Executrix and
the Orphans’ Court complied with Pa.R.A.P. 1925.
Executrix raises the following issues in this appeal:
A. Did the [Orphans’] Court err in concluding that [Husband] made
a valid inter vivos gift of the 1988 Porsche, 2004 BMW motorcycle,
and 2001 BMW motorcycle (“vehicles”) to [Wife]?
B. Did the [Orphans’] court err in concluding that [Wife] and her
witnesses are not barred by the Dead Man’s Act?
C. Did the [Orphans’] Court err in concluding that [Husband]
delivered the vehicles to [Wife]?
D. Did the [Orphans’] Court err in concluding that the vehicles are
not assets of [Husband’s] Estate[?]
Executrix’s Brief at 9. We hold that the Dead Man’s Act precluded Wife’s
testimony concerning Husband’s delivery of the titles to the vehicles. Absent
this testimony, Wife’s objection to Executrix’s first and final account fails.
“A valid inter vivos gift requires donative intent, delivery, and
acceptance.” Estate of Moskowitz, 115 A.3d 372, 386 (Pa. Super. 2015).
“[T]here must be evidence of an intention to make a [g]ift accompanied by
[d]elivery, actual or constructive, of a nature sufficient not only to divest the
donor of all dominion over the property, but to invest the donee with complete
control.” Id. Possession of car keys or title to the car usually is sufficient to
prove constructive delivery of a car. Ream’s Estate, 198 A.2d 556, 558 (Pa.
1964).
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Initially, the burden is on the alleged donee to prove an inter vivos gift
by clear, precise and convincing evidence. Hera v. McCormick, 625 A.2d
682, 686 (Pa. Super. 1992). Once prima facie evidence of a gift is established,
a presumption of validity arises and the burden shifts to the contestant to
rebut this presumption by clear, precise and convincing evidence. Id.The Dead Man’s Act provides in relevant part:
Except as otherwise provided in this subchapter, in any civil action
of proceeding, where any party to a thing or contract in action is
dead ... and his right thereto or therein has passed, either by his
own act or by the act of the law, to a party on the record who
represents his interest in the subject in controversy, neither any
surviving or remaining party to such a thing or contract, nor any
other person whose interest shall be adverse to the said right of
such deceased ... party, shall be a competent witness to any
matter occurring before the death of the said party.
42 Pa.C.S.A. § 5930. Under the Dead Man’s Act, three conditions must be
present in order to disqualify a witness under the Act: (1) the deceased must
have had an interest in the matter at issue; (2) the interest of the witness
sought to be disqualified must be adverse; and (3) a right of the deceased
must have passed to a party of record who represents the deceased’s interest.
Matthew’s Estate, 246 A.2d 412, 416 (Pa. 1968) (citing Hendrickson
Estate, 130 A.2d 143 (Pa. 1957)). The purpose of the Dead Man’s Act
is to prevent the injustice that would result from permitting a
surviving party to a transaction to testify favorably to himself and
adversely to the interest of the decedent when the representative
of the decedent would be hampered in attempting to refute the
testimony by reason of the death of the decedent. The theory is
that because the decedent’s representative is unable to present
evidence regarding the transaction, the other party to the
transaction should be similarly restricted.
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Estate of Cecchine, 485 A.2d 454, 458 (Pa. Super. 1984) (citation omitted).
Application of the Dead Man’s Act becomes “difficult,” however, “where
there are allegations of an inter vivos gift by the decedent to the challenged
donee.” Friedeman v. Kinnen, 305 A.2d 3, 4 (Pa. 1973). In this situation,
“both the alleged donee and the estate have an interest in the property which
may be adverse to the interest of the decedent, depending on whether the
alleged transfer took place or not.” Id. In such circumstances,
if a valid inter vivos transfer can be shown by independent
evidence [b]efore the admission of any testimony by the alleged
donee, the donee will be considered to represent the interest of
the decedent and will be permitted to testify. Conversely, if the
alleged donee fails to establish a prima facie gift by independent
testimony before he takes the stand, he will not be competent to
testify.
Id.The Superior Court has articulated this rule as follows:
Where . . . there is an issue regarding the validity of an inter vivos
gift, the court may not admit statements of decedent absent
independent testimony establishing prima facie evidence of
donative intent and delivery. If the alleged donee fails to
establish prima facie evidence of a gift or transfer by independent
testimony before he takes the stand, he is not competent to
testify.
Hera, 625 A.2d at 688 (citing Friedeman; emphasis added); see also
Estate of Petro, 694 A.2d 627, 632-33 (Pa. Super. 1997) (under Dead Man’s
Act, “the court could not admit the daughters’ testimony regarding [the
decedent’s] statements about inter vivos gifts without independent testimony
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establishing prima facie evidence of donative intent and delivery”) (citing
Hera; emphasis added).
We are not aware of any decision that addresses whether the Dead
Man’s Act is satisfied when an interested party presents independent
testimony establishing prima facie evidence of donative intent but fails to
present independent evidence of delivery before testifying about this subject
herself. Nevertheless, it is clear from Friedeman, Hera and Petro that the
proper result in such a case would be to prohibit the interested party’s
testimony concerning delivery without first admitting independent evidence of
delivery, a required element of establishing an inter vivos gift.1
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1 The Orphans’ Court may have been misled by an error in another Dead Man’s
Act decision from this Court, Zigmantanis v. Zigmantanis, 797 A.2d 990(Pa. Super. 2002). The dispute in Zigmantanis was whether the father of
three brothers gifted a parcel of land to one of the brothers, Edward. The
Orphans’ Court precluded Edward’s testimony under the Dead Man’s Act
because he failed to present independent testimony concerning intent. This
Court affirmed. In the course of our opinion, we quoted Hera for the
proposition that the court “may not admit statements of decedent absent
independent testimony and establishing prima facie evidence of donative
intent.” Id., 797 A.2d at 995 (citing Hera, 625 A.2d at 688). Unfortunately,
we failed to complete this quote by omitting that independent testimony of
“delivery” was required as well. Hera, 625 A.2d at 688 (“[w]here, as in this
case, there is an issue regarding the validity of an inter vivos gift, the court
may not admit statements of decedent absent independent testimony
establishing prima facie evidence of donative intent and delivery.”)
(emphasis added). This omission was not crucial to our decision in
Zigmantanis, because the lack of independent evidence of intent removed
any need to consider the issue of delivery. In the present case, however, this
omission appears to have misled the Orphans’ Court, for the Court recited
Zigmantanis’s incomplete statement, Opinion, 6/2/20, at 3-4, and then
improperly admitted Wife’s testimony on delivery despite the lack of
independent evidence on this subject.
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In the present case, Wife presented independent evidence of Husband’s
donative intent through Moore and Shellhammer, two witnesses who do not
stand to benefit from this case. Moore testified that four months before
Husband’s death, Husband stated that he wanted Wife to have his Porsche.
Shellhammer testified that during Thanksgiving, around six weeks before his
death, Husband stated that he was giving the vehicles to Wife and spoke with
Shellhammer about the logistics of transporting the vehicles to Wife’s
residence. Further independent evidence of Husband’s donative intent comes
from the prenuptial agreement executed on the date of Husband’s and Wife’s
marriage, which demonstrates that Husband did not list the vehicles as his
own assets.
Wife failed, however, to present independent evidence of Husband’s
actual or constructive delivery of the vehicles. Neither Moore nor
Shellhammer testified about delivery of the vehicles or the vehicle titles to
Wife. In addition, while the prenuptial agreement demonstrated Husband’s
intent to give the vehicles to Wife, it did not show that Husband actually
delivered the vehicles or titles to Wife. The only witness who testified about
Husband’s delivery of the titles was Wife—but since there was no independent
prima facie evidence of delivery, Wife was not competent to testify about
delivery under the Dead Man’s Act. Hera, 625 A.2d at 688. The Orphans’
Court erred by admitting Wife’s testimony concerning delivery—and without
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Wife’s testimony on this subject, her claim that Husband gifted the vehicles to
her fails. Id.
Accordingly, we reverse the Orphans’ Court’s order granting Wife’s
objection to the first and final account of Husband’s estate.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/21
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