Beaver, L. v. Powell, L., Mikelo, Inc. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LORRI BEAVER, ADMINISTRATRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF KENNETH BEAVER : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1091 MDA 2020
LOGAN POWELL, MIKELO, INC., BULL :
RUN INN, INC., REGEN YODER, IAN :
KEFER, JOSEPH DEMETRIO :
MORALEZ, TOWNE TAVERN, INC. :
AND KENNETH BEAVER, JR. :
Appeal from the Judgment Entered August 20, 2020
In the Court of Common Pleas of Union County Civil Division at No(s):
16-0324
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 02, 2021
Lorri Beaver (“Mother”), as Administratrix of the Estate of Kenneth
Beaver (“Beaver” and the “Estate”), appeals from the judgment directing that
the proceeds from Beaver’s wrongful death action be equally divided between
Mother and Kenneth Beaver, Jr. (“Father”). We reverse.
Beaver was born in January 1994 to Mother and Father in California.
Mother and Father separated in 1995 and divorced in 1999. After the divorce,
Mother obtained an Order in child support in California against Father, which
remained in effect until Beaver’s eighteenth birthday in 2012.
Father and Beaver visited occasionally between the separation and the
divorce, though Father was not permitted to be alone with Beaver. Beginning
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in 2000, after Father married his second wife, Kathy Kinyon (“Kinyon”),
Beaver engaged in regular visits, including overnight visits, with Father and
Kinyon. During this time period, Father would give Beaver small toys and
gifts. No visits occurred after the couple divorced in 2002. Following a period
of time in 2004, during which Father could not be located, Beaver’s sister,
Michelle Beaver (“Sister”), located Father by identifying his car parked outside
of a residence. Beaver visited Father and his then-girlfriend, Zara Vincent
(“Zara”),1 two times in 2004.
There were no visits between Beaver and Father between 2009 and
2013, and Beaver did not know where Father was living. In July 2013, Beaver
randomly encountered Father and Zara. At the time, Father and Zara were
homeless, and living in a car in the parking lot of a Wal-Mart in California. For
several weeks after the encounter, Beaver and Father visited once or twice a
week in the parking lot, or in parks or other public places. Father relocated
to Pennsylvania in 2014, though he did not tell Beaver or Sister that he had
relocated. Following the Wal-Mart visits in 2013, there were no visits between
Father and Beaver.
In July 2015, Mother paid for Beaver to travel to Pennsylvania for a
family reunion on Mother’s side of the family. On July 5, 2015, while visiting
Father with Sister, Beaver told Father and Father’s parents that he was
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1 Father and Zara (now Zara Beaver) married in 2015, after Beaver’s death.
N.T., 9/24/19, at 74.
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interested in moving to Pennsylvania and living with Father. Beaver then
asked Father if he could spend the night at Father’s house, and Father
responded that Beaver would need to ask Zara for permission. Beaver became
visibly angry, collected his belongings, and left Father’s house in Sister’s
vehicle. According to Sister, when Beaver got into the vehicle, he said, “That’s
it. I’m done. No more[,]” and “No more. Never again.”
About a week after Beaver’s final visit with Father, Beaver suffered
serious injuries outside of a bar in Lewisburg, Union County, and ultimately
died on July 19, 2015. Mother subsequently filed a wrongful death action
against several parties related to Beaver’s death. Father was served with a
copy of the Complaint, but did not participate in the wrongful death action.
Following a settlement, the Estate filed a Petition seeking approval of the
settlement and allocation of the proceeds of the wrongful death action. The
Estate claimed that Mother was the sole beneficiary of the proceeds.
On October 10, 2018, Father filed a Petition for Intervention, asserting
that he was a lawful beneficiary of the wrongful death proceeds. Following a
hearing, the trial court entered an Order granting Father’s Petition. Father
filed a Petition seeking the appointment of an Administrator Pro Tem, to which
the Estate filed a Response. The trial court held a hearing on Father’s Petition
in September 2019, and the parties each filed Proposed Findings of Fact,
Conclusions of Law, and Memoranda. On March 31, 2020, the trial court
issued an Opinion, Findings of Fact, and an Order directing that the wrongful
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death proceeds be divided equally between Mother and Father. Both parties
filed post-trial Motions, which the trial court denied after argument. On
August 20, 2020, Judgment was entered in favor of Father.
Mother filed a timely Notice of Appeal, and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.2
Mother raises the following issue for our review: “Whether the [t]rial
[c]ourt erred in concluding that [Father] was a wrongful death beneficiary?”
Brief for Appellant at 3.
Mother argues that Father was not a wrongful death beneficiary based
on Father’s limited, sporadic, and turbulent contact with Beaver prior to his
death. Id. at 24-46. Mother asserts that the trial court failed to properly
evaluate Beaver’s actions regarding Father, and what those actions said about
Beaver’s relationship with Father. Id. at 27. Mother points to the years in
which Father did not maintain a relationship with Beaver when Beaver was a
child, even though Father lived in close proximity to Beaver, as evidence that
Father lacked the intention to establish a relationship with Beaver prior to his
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2 On February 21, 2020, and May 17, 2020, as this appeal was pending before
this Court, Father filed two separate Applications to quash the instant appeal,
arguing that Mother lacked standing to sue in her capacity as the
Administratrix of Beaver’s Estate. See Application for Relief, 2/21/20; Second
Application for Relief, 5/17/20. We conclude that Father has waived this issue,
as he failed to challenge Mother’s standing before the trial court. See Burke
v. Independence Blue Cross, 103 A.3d 1267, 1271 (Pa. 2014) (stating that
challenges to a party’s standing must be raised before the trial court or they
are waived).
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death. Id. at 28-29. Mother asserts that the trial court placed improper
emphasis on Beaver’s apparent statements in the final days of his life, i.e.,
that he wished to relocate to be closer to Father in Pennsylvania, and instead
should have placed more weight on Beaver’s statements to Sister that he was
“done” with Father. Id. at 40-45. Mother characterizes Beaver’s relationship
with Father prior to his death as “[a] child wanting a relationship with his
father, to know who his father was, to know about his father’s family[,]” but
that such a desire “does not automatically translate into a child who intends
to financially bless and benefit his father, especially a father who had been
absent from his life for 17 of his 21 years.” Id. at 45-46.
As this Court has explained,
[t]he findings of a judge of the orphans’ court division, sitting
without a jury, must be accorded the same weight and effect as
the verdict of a jury, and will not be reversed by an appellate court
in the absence of an abuse of discretion or a lack of evidentiary
support. In re Estate of Cornell, … 486 A.2d 424, 425 ([Pa.
Super. ]1984).
This rule is particularly applicable “to findings of fact
which are predicated upon the credibility of the
witnesses, whom the judge has had the opportunity
to hear and observe, and upon the weight given to
their testimony.” Herwood v. Herwood, … 336 A.2d
306 ([Pa. ]1975). In reviewing the [o]rphans’
[c]ourt’s findings, our task is to ensure that the record
is free from legal error and to determine if the
[o]rphan’s [c]ourt’s findings are supported by
competent and adequate evidence and are not
predicated upon capricious disbelief of competent and
credible evidence. In re: Estate of Damario, … 412
A.2d 842 ([Pa. ]1980). However, we are not limited
when we review the legal conclusions that [o]rphans’
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[c]ourt has derived from those facts. In re: Ischy
Trust, … 415 A.2d 37 ([Pa. ]1980).
In re Estate of Dembiec, 468 A.2d 1107, 1110 (Pa. Super. 1983).
The Pennsylvania Wrongful Death Act provides, in relevant part, as
follows:
(a) General rule.--An action may be brought, under procedures
prescribed by general rules, to recover damages for the death of
an individual caused by the wrongful act or neglect or unlawful
violence or negligence of another if no recovery for the same
damages claimed in the wrongful death action was obtained by
the injured individual during his lifetime and any prior actions for
the same injuries are consolidated with the wrongful death claim
so as to avoid duplicate recovery.
(b) Beneficiaries.-- … the right of action created by this section
shall exist only for the benefit of the spouse, children or parents
of the deceased, whether or not citizens or residents of this
Commonwealth or elsewhere. The damages recovered shall be
distributed to the beneficiaries in the proportion they would take
the personal estate of the decedent in the case of intestacy and
without liability to creditors of the deceased person under the
statutes of this Commonwealth.
42 Pa.C.S.A. § 8301(a), (b).
“The purpose of the Wrongful Death Act is ‘to compensate certain
enumerated relatives of the deceased for the pecuniary loss occasioned to
them through deprivation of the part of the earnings of the deceased which
they would have received from him had he lived.’” Berry v. Titus, 499 A.2d
661, 664 (Pa. Super. 1985) (quoting Manning v. Capelli, 411 A.2d 661, 664
(Pa. Super. 1985)); see also Linebaugh v. Lehr, 505 A.2d 303, 304-05 (Pa.
Super. 1986) (stating that the purpose of the Wrongful Death Act is to
compensate the decedent’s survivors for their pecuniary losses, rather than
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the decedent’s estate). “[O]nly those persons who stand in a family relation
to the deceased are statutorily authorized to recover damages.” Berry, 499
A.2d at 664 (quoting Manning, 411 A.2d at 254). A “family relation”
[e]xists between parent and child when a child receives from a
parent services or maintenance or gifts with such reasonable
frequency as to lead to an expectation of future enjoyment of
these services, maintenance, or gifts. The term “family relation”
as thus used does not embrace its comprehensive definition, but
is confined to certain phases of family relation between the
persons named in the act. … Before there can be any recovery
in damages by one in that relation for the negligent death of
another in the same relation, there must be a pecuniary loss.
Gaydos v. Domabyl, 152 A. 549, 551-52 (Pa. 1930). Further,
[t]he reasonable expectation of pecuniary advantage to one
standing in the family relation may be shown in many ways, but
more frequently through services, food, clothing, education,
entertainment, and gifts bestowed. To be reasonable, the services
and gifts must have been rendered with a frequency that begets
an anticipation of their continuance; occasional gifts and services
are not sufficient on which to ground a pecuniary loss.
Id. at 552 (citation omitted). In evaluating the amount that a parent would
receive from the efforts of a decedent child, had he lived to adulthood, a court
must look to “the parent’s contribution, financial and otherwise, to the
development of the child while he was living.” See Berry, 499 A.2d at 665.
In Smith v. Sandals Resorts International, 709 F.Supp.2d 350(E.D.Pa. 2010),3 the United States District Court for the Eastern District of
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3 We note that the decisions of the lower federal courts and other states’ courts
may provide persuasive, although not binding, authority. See Gongloff
Contracting, L.L.C. v. Architects and Engineers, Inc., 119 A.3d 1070,
1078 n.6 (Pa. Super. 2015); Huber v. Etkin, 58 A.3d 772, 780 n.8 (Pa.
Super. 2012), appeal denied, 68 A.3d 909 (Pa. 2013).
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Pennsylvania confronted a similar issue. There, the decedent’s father did not
meet the decedent until he was eight years old, and visits were limited to
family gatherings and sporadic monetary gifts after decedent turned
seventeen years old. Id. at 355-56. Though the father increased his contact
with decedent after he suffered the injuries that would eventually result in his
death, the trial court determined that the father did not suffer a pecuniary
loss, concluding that “allowing [the father] to benefit from [the decedent’s
death] would inequitably reward [the father] for limiting his role in decedent’s
life.” Id. at 357, 359.
By contrast, in Berry, this Court determined that the mother of the
fifteen-year-old decedent, who had recently divorced the father and was no
longer living with the father and the decedent, still suffered a pecuniary loss
and was entitled to wrongful death proceeds. Berry, 499 A.2d at 664. This
Court pointed to the mother’s contributions to decedent’s care for the first
fourteen years of his life and had relinquished her financial interest in the
marital home for the decedent’s benefit. Id. Accordingly, this Court
concluded that the mother had an expectation of future enjoyment of her son’s
pecuniary relationship had he lived to adulthood, and she was entitled to
wrongful death benefits as a result. Id. at 665.
In In re Estate of Wolfe, 915 A.2d 1197 (Pa. Super. 2006), this Court
determined that a decedent’s adult daughter was entitled to wrongful death
benefits when the decedent visited with his daughter every weekend after the
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decedent had divorced the daughter’s mother; the decedent assisted with
daughter’s college tuition and expenses; the decedent furnished his daughter
with a car; and the decedent spent time and visited with his grandchild after
daughter gave birth. Id. at 1201-02. This Court determined that such acts
established continuous past acts and pecuniary conduct which created a
reasonable expectation that such acts would continue into the future. Id. at
1203.
In this case, the record indicates that Father’s relationship with Beaver
was sporadic and inconsistent. Father spent years at a time without reaching
out to or visiting with Beaver; Father’s and Beaver’s relationship was
acrimonious when Beaver was a teenager, including instances in which Beaver
wanted to physically fight Father; Father did not know significant details about
Beaver’s life such as his fiancée, high school, career, or the date of his death;
Father relocated across the country without informing Beaver; Father only
provided one substantive gift to Beaver—a pair of shoes—when he was a child;
Father had access to a cell phone but did not contact Beaver; and Father’s
only financial support provided to Beaver after 2002 was his court-ordered
child support. See N.T., 9/24/19, at 18-19, 28-29, 41, 52-53, 58, 60, 78-80,
99-100. Additionally, Father testified that, despite loving Beaver, “[t]here
were times throughout [Beaver’s] life where [Father] didn’t care for him as a
person” because of Beaver’s attitude towards Father. Id. at 42. Further,
Sister presented credible testimony that, following Beaver’s final visit with
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Father, at which time Father required that Beaver ask Zara for permission to
spend the night in his house, Beaver stated, “That’s it. I’m done. No more,”
and “[n]o more, never again,” specifically in reference to Father. Id. at 145-
46.
Father’s level of contact in Beaver’s life falls far short of the beneficiaries
in Berry and Estate of Wolfe. The mother in Berry had directly supported
the decedent until a year before his death and relinquished her interest in the
marital home to provide a better home for decedent. Berry, 499 A.2d at 665.
The daughter in Estate of Wolfe maintained a close relationship with the
decedent, including receiving regular gifts from decedent until his death.
Estate of Wolfe, 915 A.2d at 1201-03. Here, Father provided few gifts to
Beaver, and the visits between Father and Beaver, once Beaver reached
adulthood, appear to have been spurred by a random meeting between Beaver
and Father, and Beaver’s pre-arranged visit to Pennsylvania. N.T., 9/24/19,
at 22-23, 29, 37-38.
In light of these circumstances, the record does not support the trial
court’s determination that Father suffered a pecuniary loss from Beaver’s
death. Even considering the difficulty posed by Father’s struggles in securing
housing and employment, Father’s ongoing contact with Beaver can be best
described as sporadic and inconsistent, as opposed to a relationship grounded
in a genuine belief, by either party, that it would continue into the future.
Considering the totality of the circumstances, we conclude that the trial court
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abused its discretion in determining that Father’s contributions to Beaver
occurred with such a reasonably continuous frequency to establish a pecuniary
loss. See Berry, 499 A.2d at 665; Gaydos, 152 A. at 552.
Accordingly, we reverse the judgment entered by the trial court, and
remand for further proceedings. The trial court is directed to award the
wrongful death proceeds to Mother, in accordance with 20 Pa.C.S.A.
§ 2103.
Order reversed; case remanded for further proceedings consistent with
this Memorandum. Superior Court jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2021
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