Kern v. Kern

892 A.2d 1, 2005 Pa. Super. 422, 2005 Pa. Super. LEXIS 4235
CourtSuperior Court of Pennsylvania
DecidedDecember 19, 2005
StatusPublished
Cited by70 cases

This text of 892 A.2d 1 (Kern v. Kern) 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
Kern v. Kern, 892 A.2d 1, 2005 Pa. Super. 422, 2005 Pa. Super. LEXIS 4235 (Pa. Ct. App. 2005).

Opinion

POPOVICH, J.:

¶ 1 Appellants Marla Bednarowicz and Gayle Picconi, co-administratrices D.B.N. of the estate of Howard R. Kern, a/k/a Howard Rayburn Kern, a/k/a Rayburn Kern, deceased, appeal from the order entered on December 6, 2004, in the Court of Common Pleas of Fayette County, Pennsylvania, which order made final the entry of partial summary judgment on behalf of Roxanne Kern, Gerald R. Kern, Terry L. Kern, Revocable Kern Family Trust, and Kern Brothers Lumber Company, Inc. (collectively Appellees). Additionally, Ap-pellees have filed a motion to quash citing deficiencies in Appellants’ brief and Pa. R.A.P.1925(b) statement. Upon review, we deny Appellees’ motion and affirm.

¶2 The relevant facts and procedural history of this case are as follows: John Kern (John) and Howard Rayburn Kern (Rayburn) were brothers and business partners in Kern Brothers Lumber Company (the business). The business was organized as a partnership in 1973. During the course of their business relationship, Rayburn became mentally and physically disabled due to the effects of alcoholism, and he ceased working at the business. As a result of his condition, Rayburn separated from Roberta Kern [4]*4(Roberta), his wife, and, in 1986, was placed in a personal care home.

¶ 3 Pursuant to the partnership agreement, John presented an accounting to Rayburn, and Rayburn’s interest in the partnership was returned to him through wage and benefit payments to himself and Roberta. Throughout the period of Rayburn’s disability, John ran the business and purchased certain property that was logged by the business and was leased to other businesses for mining purposes. In 1996, John took steps to form a corporation as a successor to the partnership he had with Rayburn. Although Rayburn was disabled, separated from his wife, and did hot have a legal guardian, John arranged the preparation of a dissolution agreement by which Rayburn relinquished his rights in the partnership. Thereafter, on January 1,1997, John executed a sale of the partnership’s assets to the newly-incorporated Kern Brothers Corporation. John died on November 21,1997.

¶ 4 Despite the change of the business’ organizational structure and despite John’s death, the business continued to make wage and benefit payments to Rayburn until his death in December 2000. After Rayburn’s death, the business continued to disburse funds to Roberta and pay her health insurance premiums. The business ceased making payments to Roberta on her sixty-fifth birthday in July 2001.

¶ 5 On July 18, 2001, after the business ceased making payments to Roberta, she filed a complaint in equity on behalf of Rayburn’s estate against Appellees. In essence, the complaint asserted that John exercised undue influence over Rayburn during his disability. This undue influence caused Rayburn to transfer his interest in the partnership to John (for sale to the corporation controlled by John) without -receiving adequate compensation for his share of the partnership. Rayburn’s estate requested the relief of an accounting of assets of the business and imposition of a constructive trust for various properties owned jointly by Appellees, as well as profits, rents, and royalties owed allegedly to Rayburn’s estate by John’s estate. Appellees responded to this complaint on August 13, 2001, by filing preliminary objections. Thereafter, on August 30, 2001, Roberta filed an amended complaint. Appellees, in turn, filed an answer, new matter, and counterclaim. Appellees’ answer and new matter asserted that Roberta’s claims were barred by laches or the statute of limitations.

¶ 6 At the conclusion of pleadings, Ap-pellees filed a motion for sanctions, asserting that the allegations made by Roberta in the complaint lacked evidentiary support. In an effort to preclude the imposition of sanctions, Roberta took the deposition of Judge John F. Wagner, Jr., Rayburn’s former attorney. Thereafter, on April 24, 2003, Appellees filed a motion for summary judgment that requested judgment as a matter of law because count I of Rayburn’s estate’s suit was an impermissible collateral attack on the distribution of John Kern’s estate and because counts II and III were barred by the doctrine of laches.

¶ 7 The trial court granted Appellees’ motion for summary judgment on November 26, 2003. The trial court authored an opinion in support of its order granting summary judgment. Rayburn’s estate, through Appellants, co-administratrices of the estate,1 attempted to appeal the trial court’s November 26, 2003 order to this Court. We quashed this appeal as interlocutory because the trial court had not yet adjudicated Appellees’ counterclaim. See [5]*5Kern v. Kern, 2223 WDA 2003 (Pa.Super. filed 2/25/2004). Appellees filed a motion to discontinue their counterclaim on December 2, 2004. The trial court granted this motion on December 6, 2004. Thereafter, Appellants filed a timely notice of appeal to this Court on January 3, 2005. The trial court ordered Appellants to file a concise statement of matters complained of on appeal, and they complied. The trial court did not author a new opinion but, instead, adopted its previous opinion as its response to Appellants’ concise statement.

¶ 8 Appellant presents the following issues for our review:

A. Where [Roberta’s complaint] sought to recover property wrongfully procured and retained by [John] by way of undue influence and concealment, whether the [trial court] committed an error of law by dismissing [Roberta’s] complaint on the basis of the collateral estoppel of a decree of distribution entered in the estate of [John], when [Roberta’s complaint’s] remedy of constructive trust did not seek to attack the decree of distribution but to enforce an equitable lien against the property distributed by that decree?
B. Where [Roberta] sought an accounting from [John Kern] who had continued to operate the partnership business after dissolution without accounting to [Rayburn] for his interest in the partnership but who had made continuous distributions of profits and benefits to [Rayburn and Roberta] in connection with his interest, whether the [trial court] committed an error of law or abused its discretion by granting summary judgment dismissing [Roberta’s] action for accounting] on the basis of laches or the statute of limitations where it should have reasonably been inferred from the record that laches or the statute of limitations was tolled by [John’s] partial payments on account of [Rayburn’s] interest and by [John’s] later attempt to state an account to [Rayburn]?
C.Where [Roberta’s] complaint sought to recover property wrongfully procured and retained by [John Kern] by way of undue influence and concealment while [Rayburn] was under a disability, whether the [trial] court committed an error of law or abused its discretion by granting summary judgment dismissing that complaint on the basis of laches, where it should reasonably [have inferred] from the record that the application of laches was tolled by the alleged wrongful misconduct and [Rayburn’s] own disability?

Appellants’ brief, at 2.2

¶ 9 First, we will review Appellees’ motion to quash.

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Cite This Page — Counsel Stack

Bluebook (online)
892 A.2d 1, 2005 Pa. Super. 422, 2005 Pa. Super. LEXIS 4235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kern-v-kern-pasuperct-2005.