In Re: Estate of Plance, A., Appeal of: Plance, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF ALFRED E. PLANCE, IN THE SUPERIOR COURT OF
JR., DECEASED PENNSYLVANIA
APPEAL OF: TIMOTHY W. PLANCE
No. 1379 WDA 2014
Appeal from the Order July 22, 2014
In the Court of Common Pleas of Beaver County
Orphans' Court at No(s): 04-13-00855
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 08, 2015
Timothy W. Plance appeals from the order entered in the Court of
Common Pleas of Beaver County, Orphans’ Court Division, that: (1)
declared that Joy Plance possesses superior title to the 146 acre farm known
as the Plance Farm (“Farm”); (2) revoked a prior order allowing the probate
of a photocopy of a will dated May 24, 2012; and (3) declared that Alfred E.
Plance (“Decedent”) died intestate. Upon careful review, we reverse and
remand for proceedings consistent with the dictates of this memorandum.
Decedent died on March 21, 2013, leaving a wife, Joy Plance (“Joy”),
and three children from his first marriage, Timothy Plance (“Timothy”),
Christopher Plance (“Christopher”) and Steven Plance (“Steven”). In 1990,
following his first wife’s death, Decedent became the sole owner of the Farm,
which is situated partly in Beaver County and partly in Washington County.
Decedent married Joy on April 25, 1994, after which time Joy sold her
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residence and invested $34,000 of the proceeds, plus $40,000 borrowed
from her father, to construct a boarding stable on the Farm. Decedent and
Joy operated the stable until approximately 2011 or 2012, when their health
failed.
On August 20, 2004, Decedent executed two land trust agreements for
the purpose of taking and holding title to the Farm. One trust was to hold
the portion of the Farm situated in Beaver County (“Beaver Trust”) and the
other was to hold the portion located in Washington County (“Washington
Trust”). Decedent and Timothy were each named 50% beneficiaries of the
trusts. That same day, Decedent executed two deeds with corresponding
real estate transfer tax forms, one transferring the Beaver County portion of
the Farm to the Beaver Trust and the other transferring the Washington
County portion to the Washington Trust. The trust documents and deeds
were prepared by and executed in the presence of Lawrence Bolind, Esquire,
who also notarized them. The deeds were given to Decedent but never
recorded.
On April 26, 2006, Decedent executed two deeds purporting to
transfer the Farm to himself and Joy as tenants by the entireties. Decedent
executed the deeds as grantor in his individual capacity and not as trustee of
the land trust agreements. Both deeds were recorded.
In 2012, Decedent and Joy executed an Oil, Gas and Coalbed Methane
Lease with respect to the entire 146 acre Farm in favor of Range Resources-
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Appalachia, LLC, and in return received a check in the amount of
$439,650.00, payable to Decedent and Joy as owners by the entireties.
In the Spring of 2012, Decedent was hospitalized and, upon his
release, Timothy and his wife, Shawna, made an appointment with their
attorney, Michael Werner, Esquire, for Decedent to execute a new will and
other estate planning documents. Timothy and Shawna accompanied
Decedent to meet with Attorney Werner. During the meeting, Decedent
showed Attorney Werner copies of the land trust agreements and deeds
from 2004, as well as the 2006 deeds from himself to himself and Joy.
Decedent also expressed concern regarding the disposition of the check from
Range Resources.1 Attorney Werner, being of the opinion that the 2004
deeds had effectively transferred the Farm to the trusts, advised Decedent
to request a stop-payment order on the Range Resources check because
Decedent and Joy, the payees named on the check, were not the true
owners of the Farm. Attorney Werner also testified that he advised
Decedent to record the 2004 deeds, but that doing so would “open up a very
large can of worms from which it would be very difficult to turn back.” N.T.
Trial, 5/19/14, at 42.
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1
Attorney Werner testified that Decedent told him the check had been
mailed to the residence he shared with Joy during the time he had been
hospitalized. Decedent “voiced serious concern about Joy obtaining that
check and his inability to access the . . . funds moving forward” due to
problems in Decedent’s relationship with Joy. N.T. Trial, 5/19/14, at 11.
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Attorney Werner prepared a will and other documents for Decedent
based upon their discussion and Decedent returned, accompanied by
Shawna Plance, to execute the documents on May 24, 2012. The will
executed by Decedent included $1,000 bequests to each of his sons and
gave the residue to Timothy, with a gift over to Christopher. The will gave
nothing to Joy. Decedent named Timothy as his executor. Shawna testified
that Decedent gave to her the originals of the executed estate planning
documents and she placed them in a plastic file box, which remained in her
possession until August 2012.
Following the execution of Decedent’s estate planning documents,
Attorney Werner received several phone calls from Shawna Plance and
Decedent in which they gave him changing instructions as to stopping
payment on the Range Resources check and recording the 2004 deeds.
Ultimately, on July 9, 2012, Decedent instructed Attorney Werner not to
proceed further with the trusts, deeds or stopping payment on the check and
requested that Attorney Werner return to him the originals and all copies of
all documents in his possession. Attorney Werner did so on that same day.2
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2
Attorney Werner testified that, according to the cover letter he sent to
Decedent, the following documents were returned to Decedent: (1) an
original and one copy of the Beaver County land trust agreement; (2) an
original and one copy of the unrecorded 2004 Beaver County deed; (3) a
copy of the recorded 2006 Beaver County deed; (4) an original Washington
County land trust agreement; (5) an original and one copy of the unrecorded
2004 Washington County deed; (6) a copy of the recorded 2006 Washington
(Footnote Continued Next Page)
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In early August 2012, Decedent asked Shawna to give him the plastic
box containing his estate planning documents. Joy testified that when
Decedent returned home with the box, he told her that he, Timothy and
Shawna had had a falling out. She further testified that Decedent took the
plastic container out to the trash burner and burned its contents.
After Decedent’s death in March 2013, the original 2012 will could not
be located. Accordingly, Timothy filed a petition to probate a photocopy of
the will. Joy did not file a response to the petition. After a hearing which
was not transcribed, at which Joy’s counsel appeared to object to the prayer
of the petition, the Orphans’ Court concluded that the will “has been lost and
misplaced and that the testator has not destroyed the original with the
intention of revocation” and directed that the copy be admitted to probate.
Timothy was granted Letters Testamentary on October 2, 2013.
On November 21, 2013, Timothy filed a petition with the Orphans’
Court, alleging that Joy had either taken or refused to disclose the location
of certain property of the Decedent, including approximately $100,000 in
gold coins and a large portion of the proceeds of the Range Resources check.
Timothy further claimed that Joy had dissipated certain other assets of the
Decedent without his authorization, and that her actions made it impossible
for him to secure and/or inventory the Decedent’s property. Timothy
_______________________
(Footnote Continued)
County deed; and (7) a copy of the Range Resources lease. N.T. Trial,
5/19/14, at 50-51.
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requested, inter alia, that Joy be enjoined from alienating property of the
estate and be ordered to account for estate property previously dissipated.
In her response to Timothy’s petition, Joy denied that she improperly
disposed of estate assets and, in new matter, asserted that Decedent had
revoked his 2012 will by burning it and, as such, had died intestate. Joy also
asserted ownership of the Farm by virtue of the 2006 deed. Joy requested
that the 2012 will be declared to have been revoked.
Timothy filed a response to new matter in which he claimed that the
issue of the will’s destruction had already been litigated and decided by the
court in 2013 when it directed the admission of the photocopy to probate,
and that Joy’s claim was subject to the doctrines of res judicata and
collateral estoppel. He also asserted that the Farm was effectively
transferred to the land trusts by the 2004 deeds. Therefore, Timothy
claimed, the 2006 deed purporting to convey the Farm to Decedent and Joy
as tenants by the entireties was void.
The parties engaged in discovery and, on May 19-20, 2014, a trial was
held before the Orphans’ Court. By memorandum and decree dated July 22,
2014, the court held that Joy Plance “possesses the superior title to the
Plance [F]arm;” concluded that the previous order allowing the probate of a
photocopy of Decedent’s will had been entered improvidently; and declared
that Decedent died intestate. Timothy filed a timely notice of appeal on
August 19, 2014, followed by a court-ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On October 28,
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2014, the Orphans’ Court filed its Rule 1925(a) opinion, in which it
addressed those issues raised by Timothy in his Rule 1925(b) statement that
had not been addressed in the court’s prior memorandum.
Timothy raises the following issues for our review:
A. Under Pennsylvania law, does the Decedent’s execution and
acknowledgement of the 2004 deed transferred from the
Decedent as an individual to himself as Trustee constitute
delivery of the deed and effectively transfer title to the subject
property even if the deed was not recorded?
B. Under Pennsylvania law, does the doctrine of res judicata
preclude Joy Plance’s claim that the will was revoked when the
question of the will’s revocation was already addressed and
adjudicated in a prior hearing?
C. Under Pennsylvania law, does the doctrine of collateral
estoppel prevent [Joy] Plance from asserting a claim that the will
was revoked when the question of the will’s revocation was
already addressed and adjudicated in a prior hearing?
Brief of Appellant, at 4.
We begin by noting 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 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), quoting In re Estate
of Hooper, 80 A.3d 815, 818 (Pa. Super. 2013).
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Timothy’s first claim is that the Orphans’ Court erred by failing to find
that there was delivery of the 2004 deeds and that the Farm was effectively
transferred to the land trust. Timothy argues that the Decedent’s failure to
record the deeds is not dispositive, and the fact that Decedent, as grantor,
delivered the deeds to himself, as trustee, evidenced his intent to pass title
of the Farm to the trust.
The Orphans’ Court found as follows:
There is no dispute that the Decedent executed two (2) Trust
Agreements and two (2) Deeds that would transfer [the Farm]
into those Trusts, with the assistance of Attorney Lawrence
Bolind, and that the original documents were then given to
Decedent. Decedent retained possession of those documents
and had every chance to properly record the Deeds but failed to
do so. Subsequently, in 2006, the Decedent executed another
Deed that transferred ownership of the [Farm] to himself and
[Joy].
Due to these facts, it is clear that the Decedent never intended
to transfer the [Farm] into the Trusts. Not only did he not
record the documents that were in his possession, but he also
acted in direct contradiction to the Trusts’ supposed ownership of
the land by later transferring it to himself and [Joy]. For that
reason, [Joy] has a superior title to the [Farm].
Orphans’ Court Opinion, 7/22/14, at 40.
For the following reasons, we conclude that the 2004 deeds effectively
transferred the Farm to the land trusts.
Whether there has been delivery of a deed is a factual question
to be determined by the chancellor. Mower v. Mower, 367 Pa.
325, 80 A.2d 856 (1951); Abraham v. Mihalich, 330 Pa.Super.
378, 479 A.2d 601 (1984). If his finding is supported by
competent evidence, it is binding on this court. Abraham v.
Mihalich, supra; see also District Council 33 v. City of
Philadelphia, 354 Pa.Super. 176, 511 A.2d 818 (1986).
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Further, we accept his resolution of conflicts in testimony as well
as his assessment of the credibility of witnesses. In re
Kerwin's Estate, 371 Pa. 147, 89 A.2d 332 (1952); Abraham
v. Mihalich, supra.In re Estate of Darlington, 527 A.2d 159, 160 (Pa. Super. 1987).
The recording of a deed raises the presumption of the deed’s validity.
Stiegelmann v. Ackman, 41 A.2d 679, 681 (Pa. 1945). However,
recording is not essential to establish the validity of a deed; title to real
estate may be passed by delivery of the deed to the grantee without
recording it. Sovereign Bank v. Harper, 674 A.2d 1085, 1092 (Pa. Super.
1996) (citation omitted). “[N]o particular form or ceremony is necessary to
effect delivery; it is sufficient if the grantor evidences his intention in any
manner to put the document into the ownership of the other party and
thereby to relinquish all control of it thereafter.” City Stores Co. v.
Philadelphia, 103 A.2d 664, 666 (Pa. 1954). “The delivery may be inferred
from the circumstances; it may be accomplished by words alone, by acts, or
by both, and it is not necessary that actual manual investiture be proved.”
Id. at 666-67. “It is the general rule that there is a presumption, [in] the
absence of proof to the contrary, that a deed was executed and delivered on
the day it was acknowledged[.]” Herr v. Bard, 50 A.2d 280, 281-82 (Pa.
1947) (citation omitted). However, the presumption arising from “signing,
sealing and acknowledging a deed is delivered, accompanied by manual
possession by the grantee, . . . is not irrebuttable[.]” Cragin’s Estate, 117
A. 445, 446 (Pa. 1922). The “presumption may be overcome by evidence
that no delivery was in fact intended, and none made.” Id.-9-
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Joy argues that no delivery occurred. However, in the cases she cites
in support of this position, the grantor and grantee were different
individuals. Conversely, here, grantor and grantee were the same
individual, the Decedent, acting in two different capacities. Accordingly,
indicia of delivery such as “relinquishment of control,” see Abraham,
supra, or delivery to a third party with instructions to pass on to the
grantee, see Fiore v. Fiore, 174 A.2d 858 (Pa. 1961), are not relevant to
our analysis. Joy also cites Clauer v. Clauer, 22 Pa. Super. 395 (1903), for
the proposition that “[w]here a Grantor retains possession of a Deed during
his lifetime and does not record it there is no delivery.” Brief of Appellee, at
11. However, there, again, the grantor and grantee were separate
individuals and, thus, Clauer is distinguishable on its facts.
The trial court placed great weight on the fact that Decedent did not
record the deeds. See Trial Court Opinion, 7/22/14, at 40 (“Decedent
retained possession of [the deeds and trusts] and had every chance to
properly record the Deeds but failed to do so.”). However, as noted above,
the failure to record the deeds is not dispositive. Decedent, as grantor,
executed, acknowledged and delivered the deeds to himself, as
trustee/grantee of two trusts he executed that same day. This was sufficient
to pass title to the trusts. Harper, supra. Joy presented no evidence to
rebut the presumption that, at the time Decedent executed and
acknowledged the deeds and delivered them to himself as trustee, he
intended to transfer ownership of the Farm to the trusts. Accordingly, the
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Orphans’ Court erred in finding that title to the Farm did not vest in the
trusts by virtue of the 2004 deeds.
Joy also argues that, even if delivery occurred, she is a subsequent
bona fide purchaser for value by virtue of the 2006 deeds and, thus, she
possesses superior title to the Farm. In support of this claim, she cites to 21
P.S. §§ 351 and 444, which provide as follows:
§ 351. Failure to record conveyance
All deeds, conveyances, contracts, and other instruments of
writing wherein it shall be the intention of the parties executing
the same to grant, bargain, sell, and convey any lands,
tenements, or hereditaments situate in this Commonwealth,
upon being acknowledged by the parties executing the same or
proved in the manner provided by the laws of this
Commonwealth, shall be recorded in the office for the recording
of deeds in the county where such lands, tenements, and
hereditaments are situate. Every such deed, conveyance,
contract, or other instrument of writing which shall not be
acknowledged or proved and recorded, as aforesaid, shall be
adjudged fraudulent and void as to any subsequent bona fide
purchaser or mortgagee or holder of any judgment, duly entered
in the prothonotary's office of the county in which the lands,
tenements, or hereditaments are situate, without actual or
constructive notice unless such deed, conveyance, contract, or
instrument of writing shall be recorded, as aforesaid, before the
recording of the deed or conveyance or the entry of the
judgment under which such subsequent purchaser, mortgagee,
or judgment creditor shall claim. Nothing contained in this act
shall be construed to repeal or modify any law providing for the
lien of purchase money mortgages.
21 P.S. § 351.
§ 444. All deeds made in the state to be acknowledged and
recorded within ninety days
All deeds and conveyances, which, from and after the passage of
this act, shall be made and executed within this commonwealth
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of or concerning any lands, tenements or hereditaments in this
commonwealth, or whereby the title to the same may be in any
way affected in law or equity, shall be acknowledged by the
grantor . . . and shall be recorded in the office for the recording
of deeds where such lands, tenements or hereditaments are
lying and being, within ninety days after the execution of such
deeds or conveyance, and every such deed and conveyance that
shall at any time after the passage of this act be made and
executed in this commonwealth, and which shall not be proved
and recorded as aforesaid, shall be adjudged fraudulent and void
against any subsequent purchaser or mortgagee for a valid
consideration[.]
21 P.S. § 444. Joy asserts that her “valid consideration” was the investment
of “substantial sums of her own funds into the development and operation of
the Farm where she worked side-by-side with her husband for nineteen
years.” Brief of Appellee, at 13. Citing Ludwig Rys v. Weronika Rys, 99
Pa. Super. 339 (1930), Joy also asserts that “natural love and affection
between spouses is considered valid consideration in the marriage or family
context.” Id. For the following reasons, Joy’s argument fails.
A grantee of land is a bona fide purchaser if, at the time of sale, he
was: (1) without notice of an adverse interest and (2) gave value for the
purchase of the land. Roberts v. Estate of Pursley, 718 A.2d 837, 841
(Pa. Super. 1998). Here, although Joy may years ago have invested her
own funds into the improvement of the Farm, she has failed to demonstrate
that she paid valid consideration at the time the deeds were actually
executed, such that she could be considered a bona fide purchaser for value.
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The deeds themselves recite only nominal consideration in the amount of
one dollar.3 Nor has Joy either argued or demonstrated that Decedent
agreed to accept her prior investment in the property as past consideration
for the conveyance. Rather, it appears that Decedent simply attempted to
make a gift of an undivided one-half interest the property to Joy.
Moreover, Joy’s reliance on Rys is inapt. Rys concerned a husband’s
claim that his wife fraudulently induced him to title property in their joint
names, despite the fact that the consideration paid for the property
consisted solely of husband’s funds. The question at issue in the current
matter, whether the wife was a bona fide purchaser for value, did not arise
in Rys and thus, the case is inapplicable here.
For the foregoing reasons, we conclude that: (1) the 2004 deeds
effectively passed title to the Farm to the trusts and (2) Joy is not a bona
fide purchaser for value and does not possess superior title to the Farm.
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3
The expression of a nominal consideration in a deed is resorted
to by conveyancers to avoid the inconvenience of setting forth
the real consideration when that is difficult to set forth briefly, or
of a private nature, and to comply with a usage that arose
because a deed of bargain and sale, under the statute of uses,
originally operated merely to create a resulting trust for the
grantor, unless supported by a valuable consideration, which, it
was formerly held, must be a pecuniary one. It is well known
that the nominal consideration of one dollar is regarded by all as
having served its purpose by its mere mention in the instrument
and that it almost never changes hands[.]
Dohan v. Yearicks, 98 A. 611, 611 (Pa. 1916)
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Timothy’s final two issues will be addressed together. These claims
assert that the Orphans’ Court erred by considering – and ultimately
agreeing with – Joy’s claim that Decedent destroyed his will by burning it
and, thus, the duplicate will admitted to probate was revoked and Decedent
actually died intestate. Timothy asserts that the questions of revocation was
adjudicated in a prior proceeding and, thus, the doctrines of res judicata and
collateral estoppel barred the court from revisiting the issues.
Under the doctrine of res judicata, a party is barred from litigating
claims that were or could have been raised in a prior action which resulted in
a final judgment on the merits, so long as the claims derive from the same
cause of action. Balent v. City of Wilkes-Barre, 669 A.2d 309, 315 (Pa.
1955). Res judicata applies when, in two actions, there is: (1) an identity in
the thing sued upon (2) identity in the cause of action (3) identity of persons
and parties to the action, and (4) identity of the capacity of the parties suing
or sued. In re Jones & Laughlin Steel Corp., 477 A.2d 527, 530-31 (Pa.
Super. 1984) (citation omitted). “The essential inquiry (in determining
whether res judicata is applicable) is whether the ultimate and controlling
issues have been decided in a prior proceeding in which the parties had an
opportunity to appear and assert their rights.” In re Estate of Velott, 529
A.2d 525, 528 (Pa. Super. 1987) (citation omitted). The purposes behind
the doctrine are to conserve limited judicial resources, establish certainty
and respect for court judgments, and protect the party relying upon the
judgment from vexatious judgment. Radakovich v. Radakovich, 846 A.2d
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709, 715 (Pa. Super. 2004). In keeping with these purposes, the doctrine
must be liberally construed and applied without technical restriction. Id.Here, the prior action was Timothy Plance’s petition to admit a
photocopy4 of the Decedent’s May 21, 2012 will. At issue in this action was
whether the will was revoked or destroyed by the testator. As here, “where
a [testator] retains the custody and possession of [his] will and, after [his]
death, the will cannot be found, a presumption arises, in the absence of
proof to the contrary, that the will was revoked or destroyed by the
[testator].” In re Estate of Janosky, 827 A.2d 512, 519 (Pa. Super. 2003)
(citation omitted). Thus, Timothy bore the burden of rebutting the
presumption that Decedent had revoked the 2012 will.
Timothy served his petition upon Joy’s counsel on August 14, 2013, in
anticipation of presenting it at the August 27, 2013 motions hearing. Joy
filed no responsive pleading to Timothy’s petition, but was represented by
counsel at the hearing. No notes of testimony from the motions hearing
exist. However, at the conclusion of the hearing, the court issued an order
finding that the Decedent had not “destroyed the original [will] with the
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4
In order to probate a copy of a lost will, the proponent of the copy must
prove that: (1) the testator duly and properly executed the original will; (2)
the contents of the will were substantially as appears on the copy of the will
presented for probate; and (3) when the testator died, the will remained
undestroyed or revoked by him. Burns v. Kabboul, 595 A.2d 1153, 1167-
68 (Pa. Super. 1991) (citation omitted). Here, the only question at issue
was whether the Decedent had revoked his will prior to his death.
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intention of revocation.” Orphans’ Court Order, 8/27/13. Joy did not appeal
and, thus, it became a final order.
Subsequently, after letters testamentary had been granted to Timothy
on the 2012 will, Joy again raised the issue of revocation in her new matter
to Timothy’s petition for relief. Joy claimed that Decedent had revoked the
will by burning it. In his response to new matter, Timothy raised the
doctrines of res judicata and collateral estoppel, claiming the issue had
already been decided by order dated August 27, 2013, admitting a
photocopy of the will to probate.
The four identities of res judicata are present in this matter. The
thing sued upon and cause of action in both actions – i.e., whether or not
Decedent had revoked his 2012 will – were the same. The parties were
identical, as were their capacities. In the prior action, Joy could have
litigated whether Timothy rebutted the presumption that Decedent revoked
his will, but failed to file a response to his petition. She had a further
opportunity to raise the issue in motions court, where she was represented
by counsel. Moreover, once the court entered its order finding that
Decedent had not revoked the will, Joy declined to file an appeal.
Accordingly, there was a final judgment entered on the merits by a court of
competent jurisdiction and Joy was barred by the doctrine of res judicata
from relitigating the same cause of action in a subsequent suit. As such, the
Orphans’ Court erred in addressing the question of revocation a second time.
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Similarly, Joy’s claim is also barred by the doctrine of collateral
estoppel. Collateral estoppel, which is closely related to res judicata, bars
the re-litigation of issues where:
(1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was
a party or in privity with a party in the prior case; (4) the party
or person privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the
prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Radakovich, 846 A.2d at 715.
As stated above, the same issue was before the court in both actions,
i.e., whether Decedent had revoked his 2012 will. In both cases, the parties
were identical and each had a full and fair opportunity to litigate the issue.
Finally, the court issued a final judgment on the merits in the first action,
and the determination as to the issue of revocation was essential to that
judgment. Joy did not appeal that ruling. Thus, the court erred in revisiting
the issue.
Order reversed. Case remanded for proceedings consistent with the
dictates of this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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