Cohn v. McGurk

479 A.2d 578, 330 Pa. Super. 333, 1984 Pa. Super. LEXIS 5234
CourtSuperior Court of Pennsylvania
DecidedJune 22, 1984
DocketNo. 1425
StatusPublished
Cited by2 cases

This text of 479 A.2d 578 (Cohn v. McGurk) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohn v. McGurk, 479 A.2d 578, 330 Pa. Super. 333, 1984 Pa. Super. LEXIS 5234 (Pa. Ct. App. 1984).

Opinion

HESTER, Judge:

This is an appeal from the denial of appellants’ Petition to Open and/or Strike Judgment entered by Confession.

The facts of the case are as follows:

On September 5, 1979, Marguerite Grekowicz, sister of appellant Terence McGurk, died in Littleton, Colorado. At the time of her death, Mrs. Grekowicz had five children, three boys and two girls ranging in age from seven to fifteen. In her Last Will, regarding the care of her children, Mrs. Grekowicz provided:

“2.2 Trustee. I appoint TERENCE McGURK as Trustee of my Trust Estate. If he shall fail to qualify or cease to act, I appoint ROSEMARY McGURK as successor Trustee. If more than one Trustee is acting at any time, any reference to Trustee hereunder shall include all Trustees.
2.3 Guardian.
a. If it becomes necessary to appoint a guardian of the person, estate, or person and estate of any of my minor children with respect to any property passing under this Will or outside thereof by reason of my death, I appoint TERENCE and MINELLA McGURK, or the survivor of them, or in the event of a divorce, TERENCE McGURK, as guardian of the person and estate of such minor children, to serve without bond.
[336]*336b. I recognize that serving as the guardian of the person and estate of my minor children may result in economic hardship to the guardian. Accordingly, pursuant to Section 1484 of the California Probate Code, I herewith specifically authorize any person nominated in this Will and serving as guardian of the person and estate of my minor children to utilize such funds of the guardianship estate as are reasonably necessary to offset any economic burdens occasioned to the guardian by virtue of his acting in such capacity. By way of illustration, but not by way of limitation, I expressly authorize the guardian to utilize the guardianship estate to expand, enlarge, or remodel the existing home of the guardian or to purchase a larger home, if reasonably required, in order to permit all of my minor children to reside with such guardian in comfort. The reasonableness of the need to enlarge the guardian’s present home, or to purchase a larger one, as the case may be, shall depend in part on (i) the number and ages of children for whom the guardian of the person is required to care (including his or her own children), and (ii) the size of the guardianship estate. Such guardian may also utilize guardianship funds to pay any increases in living expenses occasioned by such guardianship, including but not limited to increases in homeowners’ fire and casualty insurance, property taxes incurred by the remodeling or expansion of said guardian’s home or the purchase of a new home, utility bills and food bills. All such expenses shall be charged in equal shares against the guardianship estate of each of my minor children. The guardian shall also be permitted to reside with my children in my personal residence, although title to such residence shall remain in my Trust Estate, as hereafter defined until some future disposition is made to my beneficiaries.”

At the time of Mrs. Grekowicz’s death, appellants and their three children resided in a three-bedroom dwelling in Pennsylvania. Appellant Terence McGurk was earning approximately $40,000.00 per year as the owner of a service [337]*337station. While it is disputed whether appellee agreed to give appellants $60,000.00 pursuant to the quoted portions of the Will or whether that amount was to be in the form of a loan from the estate, it is undisputed that Mr. McGurk had consulted the appellee before deciding to purchase a new home to accommodate the decedent’s five children. Appellants purchased a six-bedroom home for $205,000.00.

Relying upon their understanding that they would receive a $60,000.00 gift from the decedent’s estate, appellants deposited a down payment of $20,000.00, which was taken from their children’s college education fund, upon the large residence. However, a disagreement arose as to whether appellants would receive the $60,000.00 as a gift from the estate as provided for in the Will, or whether the $60,000.00 constituted a loan from the estate.1 In addition, appellants and appellee disagreed as to whether the money would be paid from funds transferred from decedent’s general estate to her children’s guardianship estate within a year from the date of purchase of appellants’ new residence.

At the closing of the purchase of appellants’ new residence, appellee, through her attorney, advised appellants that they would be required to execute a mortgage and note in favor of the estate, otherwise the $60,000.00 would not be forthcoming. Appellants signed the mortgage documents but allege this was done under duress, otherwise they would have forfeited the $20,000.00 deposit which had been withdrawn from their children’s college fund.

The mortgage, bond and warrant required that appellants repay the $60,000.00 by December 10, 1980 (one year from the closing of the transaction.) In addition, said documents contained the usual provisions for the payment of 6% interest annually and costs of suit and an attorney’s commission of 5% for collection in the event of default.

[338]*338On January 5, 1983, appellee confessed judgment against appellants for $71,493.37, together with future interest, attorneys’ fees and costs. In response to appellee’s Confession, appellants filed a Petition to Open and/or Strike Judgment Entered by Confession alleging those contentions set forth above.

Following a hearing wherein appellants’ witnesses were not permitted to testify as to what had occurred at the settlement due to the parol evidence rule, the hearing court denied appellants’ Petition. It is from said denial that appellants have appealed.

Following the filing of appellants’ Notice of Appeal on May 3, 1983, appellee filed a Motion to Quash the Appeal for Mootness. Therein appellee alleged that the decedent’s children no longer lived with appellants and that since appellants had sold their new residence and repaid the $60,000.00 to appellee, the appeal was moot. Appellants contend that they repaid the $60,000.00 only because it was necessary to enable them to deliver clear title to the property.

Appellants failed to answer appellee’s Motion to Quash and this Court, on October 18, 1983, quashed the appeal. Subsequently, appellants filed an Application for Reconsideration in which they averred that as a result of the inadvertence of counsel, the answer was not filed. Appellants denied that the appeal was moot since appellee was attempting to collect interest on the loan and appellants had incorporated by reference the arguments set forth in their brief. One of the arguments was that the lower court erred in not permitting testimony as to the alleged inducements made by appellee to the effect that funds from the general estate would be transferred to the guardianship estate in order to permit appellants to repay the $60,000.00. Appellants further aver that the above-mentioned testimony should have been admitted to clear up the alleged ambiguities in the mortgage documents.

Upon consideration of appellants’ Application for Reconsideration, we reinstated their appeal.

[339]*339In considering this appeal, we will first address appellee’s contention that appellants have waived any arguments concerning their payment of interest on the mortgage.

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Cite This Page — Counsel Stack

Bluebook (online)
479 A.2d 578, 330 Pa. Super. 333, 1984 Pa. Super. LEXIS 5234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohn-v-mcgurk-pasuperct-1984.