In Re:Petition of Navarra, S. Appeal of:Navarra,C

Opinion

J-A16014-17 2018 PA Super 84 IN RE: PETITION OF SANDRA NAVARRA : IN THE SUPERIOR COURT OF BY THE LIMITED GUARDIAN OF HER : PENNSYLVANIA ESTATE, :

: :

APPEAL OF: CHRIS NAVARRA, LINDA : D’AUGOSTINE, JOANNE M. NAVARRA, : RICHARD E. NAVARRA AND CHARLENE : A. SHELLEDY : No. 1307 WDA 2016

Appeal from the Order entered August 25, 2016, in the Court of Common Pleas of Lawrence County, Orphans’ Court at No(s): 109 of 2014 O.C.

BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER,* J.

DISSENTING OPINION BY STRASSBURGER, J.: FILED APRIL 11, 2018

Although the result reached by the Majority is certainly a fair one, it

does not comport with the statute. Accordingly, I am constrained to dissent.

The issue of whether the orphans’ court has the authority to substitute

its judgment for that of that of Wife in order to disinherit Husband’s legatees

is governed by 20 Pa.C.S. § 5536(b). Although the statute has some broad

language, the only section concerning the modification of a will provides that

the court may modify “by means of codicil or trust amendment, as the case

may be, the terms of the incapacitated person’s will … as the court may

deem advisable in light of changes in applicable tax laws.” 20 Pa.C.S.

§ 5536(b)(11). If the legislature desired that the orphans’ court could

substitute its judgment to modify a will in situations other than those

involving tax laws, the legislature could easily have included that in the

*Retired Senior Judge assigned to the Superior Court.

J-A16014-17

statute. Expressio unius est exclusio alterius.1 However, the legislature did

not do so. Thus, I would reverse the order of the orphans’ court as to the

four legatees over whom the orphans’ court had jurisdiction.

1 “The maxim, expressio unius est exclusio alterius, establishes the inference that, where certain things are designated in a statute, all omissions should be understood as exclusions. The maxim is one of longstanding application, and it is essentially an application of common sense and logic.” Commonwealth v. Ostrosky, 866 A.2d 423, 430 (Pa. Super. 2005) (holding “the legislature’s decision to expressly designate that repeated threats or course of threats can violate the statute, indicates that they did not intend to punish a single such incident”).