Ackley, A. v. Ackley, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF DAVID W. : IN THE SUPERIOR COURT OF
ACKLEY, SR ADAM R. ACKLEY, : PENNSYLVANIA
ADMINISTRATOR OF THE ESTATE :
OF DAVID W. ACKLEY, SR. :
:
Appellant :
:
:
v. : No. 2326 EDA 2020
:
:
BRITTANY HOPE ACKLEY :
Appeal from the Order Entered November 6, 2020
In the Court of Common Pleas of Monroe County
Orphans' Court at No(s): No. 2018-00157
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED OCTOBER 4, 2021
Adam R. Ackley, as administrator of David W. Ackley, Sr.’s estate
(Administrator), appeals from the November 6, 2020 orphans’ court order,
which: (1) ascertained that Brittany Ackley (Brittany) had proven by clear and
convincing evidence that she was an heir to David Ackley, Sr.’s estate
(Estate); and (2) directed the Administrator to prepare, file, and serve an
account of the estate and proposed distribution. See Pa.R.A.P. 342(a)(5)
(permitting an appeal from an order that determines the status of an estate
beneficiary). On appeal, the Administrator dually challenges the court’s earlier
denial of his request for Brittany to submit to DNA testing as well as the court’s
ultimate determination that she was an heir to the Estate. In finding no merit
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 Retired Senior Judge assigned to the Superior Court.
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to his first contention and in finding waiver as to his second, we affirm.
In summary, David Ackley, Sr., (David) had three children from an
acknowledged marriage. At some point, David entered into another
relationship, but never remarried. While David and this subsequent woman
were cohabitating, she gave birth to two daughters, with one of them being
Brittany.
David is listed on Brittany’s birth certificate as her father, and Brittany
uses David’s surname. Furthermore, David included Brittany in his Veteran’s
Administration benefits.
David lived with Brittany and her mother until Brittany was
approximately eight to nine years old. Several years later, Brittany, having
then left her mother’s residence, moved into David’s home for around five
years. While Brittany was living with David, David attended some of Brittany’s
extracurricular activities, namely cheerleading. After those five years, Brittany
moved in with her aunt to complete high school, and concurrent with that
event, both David and Brittany’s mother granted legal guardianship to the
aunt. Following the completion of high school, Brittany moved in with David
for another year.
David died intestate. Shortly thereafter, the Administrator petitioned the
Register of Wills office to appointed as administrator. The petition listed
Brittany as a sibling to the Administrator and included a renunciation from her
of her right to become an administrator.
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Subsequently, Brittany hired counsel and filed a petition for production
of formal accounting and proposed distribution. In response, the Administrator
claimed that Brittany was not David’s offspring.
Ultimately, the Administrator filed a petition requesting DNA testing of
Brittany. After hearing argument, the court denied the Administrator’s
request. Several months later, the court reconvened to consider evidence of
Brittany’s status as an heir to the Estate. The court then determined that
Brittany had met the burden of clear and convincing evidence in proving that
she was David’s issue.
Correspondingly, the Administrator filed the present appeal. 1 The
relevant parties have complied with their respective obligations under
Pennsylvania Rule of Appellate Procedure 1925. Accordingly, this appeal is
ripe for review.
On appeal, the Administrator presents two questions:
1. Did the orphans’ court err in denying his request for DNA
testing to determine if Brittany is the issue of David because:
(1) Brittany was born out of wedlock; (2) the burden of
submitting to testing is light; (3) the probative value of the test
is high; (4) the other potential heirs were willing to undergo
testing; and (5) David’s genetic material was readily available
for comparison?
2. Did the orphans’ court err by finding that Brittany proved her
claim to be an heir by clear and convincing evidence when,
inter alia, there was no DNA testing of record?
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1 The Administrator did not file a motion for reconsideration nor any other kind
of motion analogous to a post-judgment motion.
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Appellant’s Brief, at 6.
Preliminarily, we note that although he has presented this Court with
two distinct questions, the Administrator only has one omnibus argument
section in his brief. See Appellant’s Brief, at 10-12. Such formatting is in
violation of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part--in distinctive
type or in type distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as are deemed
pertinent.”). However, a thorough reading of his brief yields a determination
that the Administrator, at the expense of his latter question, has exclusively
challenged whether the orphans’ court erred in denying his DNA testing
request. Accordingly, the Administrator’s second question is waived for failure
to develop or mention this issue in the argument section of his brief. See
Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (establishing
that a failure to pursue a claim in the body of a brief results in waiver).
As to whether it was in error for the orphans’ court to deny the
Administrator’s petition seeking compulsory DNA testing of Brittany, we find
no support for the proposition that denial of such a request was an abuse of
discretion or error of law.
While paternity testing for a child born out of wedlock can be requested
by “any party to an action to establish paternity,” 23 Pa.C.S.A. § 4343(c)(1),
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thereby requiring the court to order “the child and the parties to submit to
genetic tests[,]” id., the Administrator cites to no equivalent statutory
subsection governing intestate estate distribution. Instead, the Administrator
concedes that even in child support actions, “denial of testing is absolutely
proper where there are clear grounds for estoppel, such as when a putative
father enters a consent decree to support [a child].” Appellant’s Brief, at 10.
We agree with the Administrator that “the actual degree of
consanguinity is the determining factor for inheritance” in an intestate estate
distribution. Id.; see also 20 Pa.C.S.A. § 2104(1). However, a consanguinity
determination that adjudicates whether an individual born out of wedlock is a
descendant of a male decedent allows for proof in three separate ways. See
20 Pa.C.S.A. § 2107(c). Specific to this case, the court held that Brittany
clearly and convincingly had established that David’s tangible actions while
alive meant that he openly considered Brittany to be his daughter and
supported her as such. See 20 Pa.C.S.A. § 2107(c)(2) (“If during the lifetime
of the child, the father openly holds out the child to be his and receives the
child into his home, or openly holds the child out to be his and provides support
for the child which shall be determined by clear and convincing evidence.”).
Simply put, a plain reading of that section indicates no requirement of any
kind of genetic proof in order to make a descendant determination.
To support his position that he should be allowed to seek DNA testing of
another party, the Administrator cites to In re Estate of Greenwood, 587
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A.2d 749 (Pa. Super. 1991), and Wawrykow v. Simonich, 652 A.2d 843(Pa. Super. 1994). In the former case, this Court determined that the potential
child of a decedent could petition the court for an order requiring the genetic
testing of that decedent’s blood, despite the administrator’s adamant refusals
to provide the blood samples. See In re Estate of Greenwood, 587 A.2d at
756-57 (predicating its holding, in part, on the strong public policy position
attempting to eliminate the stigma of illegitimacy). In the latter case, this
Court ascertained that a potential heir “attempting to establish paternity for
inheritance purposes,” should, if necessary to demonstrate such a claim by
clear and convincing evidence, be allowed to exhume the decedent for testing
purposes, as “the proof … may exist in no other venue[.]” Wawrykow, 652
A.2d at 848. In conclusion, the Administrator additionally reasons that,
because subpoenas are routinely issued for, inter alia, medical exams in
personal injury and workers’ compensation cases, he should be allowed to
request the same from the court in this present matter. See Appellant’s Brief,
at 12.
The factual underpinnings of the authority cited by the Administrator are
either wholly inapplicable, as in the case of medical subpoenas, or fail to
parallel the procedural situation that was before the orphans’ court. In the
present case, it was the Administrator attempting to disestablish that Brittany
was an heir to the Estate. The court found that the “Administrator’s petition
effectively pre-empt[ed]” Brittany’s burden to establish herself as David’s
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heir. Orphans’ Court Opinion, 7/8/20, at 3 (opinion accompanying order
denying DNA petition). The court continued by indicating that it “could expect
a petition for DNA testing in an attempt by [Brittany] to provide clear and
convincing evidence of paternity, but not necessarily a petition from the
Administrator, who is an additional heir, to disprove paternity.” Id.The Administrator does not contest that it was Brittany’s burden to
establish herself as an heir. In fact, the court found that “the relief requested
would force [Brittany] to engage in such testing when she has other means
available to attempt to prove she is [David’s] child under Section 2107(c).”
Id., at 6. We see no basis, statutory or otherwise, to conclude that the
Administrator has the inherent ability to seek a DNA test of an individual
attempting to demonstrate paternity from a decedent. While, of course, DNA
testing would be probative (if not effectively conclusive) as to whether Brittany
is an heir to the Estate, it does not follow that there is authority for an
administrator to offensively seek a DNA sample from a paternity-based estate
claimant.
Even construing the relevant intestacy statutes liberally, an attempt to
preemptively exclude an individual from his or her potential estate share is
incongruous with the thrust of prior case law, which exclusively places the
burden of proof on the one claiming to be an heir to an estate. Absent any
basis to compel Brittany to submit to DNA testing when she is not the party
requesting it, we are constrained to find that the trial court did not err when
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it denied the Administrator’s request.
Moreover, as stated, supra, 20 Pa.C.S.A. § 2107 allows for a potential
child to demonstrate paternity by way of clear and convincing evidence if the
father, during his lifetime, openly holds that child out as his own, receives that
child into his home, or supports him or her. No DNA test is or was necessary
to make this determination and its absence was not fatal in the court’s holding
that Brittany was David’s heir. After holding a hearing, the orphans’ court
detailed thirty-five findings of fact and notably found:
Here, [David] was listed as [Brittany’s] father on her birth
certificate. [David] openly held [Brittany] out as his own child and
never denied she was his daughter. [Brittany] lived with [David],
her mother and her sister, who was also the daughter of [David]
and [Brittany’s] mother, from birth until she was 8 or 9 years old.
During that time, [David] supported [Brittany], and they all lived
together as a family.
Upon the separation of [Brittany’s] mother and [David],
[Brittany] continued to be supported by [David] through receipt
of his V.A. benefits by her mother. [Brittany] then moved back in
with [David] in 2007 and lived with him from when she was in 8th
or 9th grade through 11th grade. During that time, [David]
supported [Brittany] and held her out as his daughter. He even
attended her cheerleading events. There was no formal custody
order between [David] and [Brittany’s] mother, but all parties
were in agreement with [Brittany] living with [David] at the time.
[Brittany] moved in with her aunt to finish her senior year
in high school. [David’s] V.A. benefit was then payable to
[Brittany’s] aunt as support for [Brittany]. [Brittany’s] mother and
[David] signed guardianship papers for [Brittany] to live with her
aunt at the time. [Brittany] eventually moved back in with [David]
for a period of time after she turned 18 and had graduated from
high school in 2011 until June 2012. These facts were credible and
uncontested. It shows that [David] held [Brittany] out to be his
child, received her in his home, and also provided support for her
when needed.
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Orphans’ Court Opinion, 11/6/20, at 7-8.
Although the Administrator waived his challenge as to whether Brittany
demonstrated paternity by clear and convincing evidence, we find that the
court did not abuse its discretion in making such a determination. The court’s
finding is well-supported by the record, and even if it were properly
challenged, we would see no reason to reverse.
Accordingly, we affirm the orphans’ court order determining Brittany to
be an heir of David’s Estate.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2021
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