Sack v. Feinman

413 A.2d 1059, 489 Pa. 152, 1980 Pa. LEXIS 614
CourtSupreme Court of Pennsylvania
DecidedApril 30, 1980
Docket7
StatusPublished
Cited by90 cases

This text of 413 A.2d 1059 (Sack v. Feinman) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sack v. Feinman, 413 A.2d 1059, 489 Pa. 152, 1980 Pa. LEXIS 614 (Pa. 1980).

Opinion

OPINION

NIX, Justice.

This appeal arises out of a complaint in equity instituted in 1971 by Davida Sack, appellant, against her sister, Isabel Feinman, appellee. The complaint alleged that appellee had induced their mother to execute powers of attorney to enable appellee to control their mother’s assets. It was further asserted that appellee fraudulently converted these assets prior to the mother’s death by placing them in her own name. Specifically, it was contended that appellee, during January and April of 1970, through the use of the previously mentioned powers of attorney, converted savings bonds and certificates belonging to the mother and placed in trust for appellant to her own account. The chancellor found that the redemption of these bonds and certificates was not at the request or instruction of the mother and rejected the contention that the redemptions were intended by the mother to be a gift to appellee. Thereupon the chancellor found in appellant’s favor and imposed a constructive trust in the amount of $25,000. Appellant appeals from the chancellor’s refusal to award pre-verdict interest. The Superior Court affirmed without opinion and we granted allocatur. 1

*156 The facts underlying this action are clear cut. At the time of the adjudication by the court of common pleas in 1975, appellant was 49 years old, appellee was 59, and a third sister, Ruth Gland, 2 was 54 years old. Their father had died at an unspecified time prior to the death of their mother who died on November 10, 1970. Appellee, who has never married, had been living with the mother since at least 19601

Beginning in 1967, the decedent began to purchase savings bonds in her name in trust for each of her daughters. These purchases were as follows:

(a) January 5, 1967: Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one in the name of decedent in trust for appellant and one in decedent’s name in trust for appellee.
(b) January 27, 1967: First Pennsylvania Bank, three 10 year, five percent savings bonds in the amount of $10,000 each, held in decedent’s name in trust for her daughters in the following amounts: appellant $10,-000, appellee $5,000, Ruth Gland $10,000.
(c) February 1, 1967: Girard Trust Bank, two 10 year, five percent savings bonds in the amount of $10,000 each, one held in decedent’s name in trust for appellee, the other held in trust for Ruth Gland.

In a will executed by the decedent on November 15, 1967, she stated that she had made provisions for Ms. Gland and appellant to each receive $20,000 upon her death from assets from the probate estate:

In making the foregoing provisions in this, my will, I have considered the needs of each of my daughters, ISABEL FEINMAN, RUTH C. GLAND and DAVIDA G. SACK, and I have been mindful of the fact that I have, in *157 my lifetime, made certain provisions for my daughters, RUTH C. GLAND and DAVIDA G. SACK, so that upon my death, each of said daughters, RUTH and DAVIDA, will receive approximately Twenty Thousand ($20,000.00) Dollars, from certain of my assets that will not be a part of my probate estate. I am confident that my daughters, RUTH C. GLAND and DAVIDA G. SACK, as well as my daughter ISABEL FEINMAN, will always know that while I have made greater provision for the financial security of my daughter, ISABEL FEINMAN my love for all of them has always been equal.

Shortly prior to the execution of this will, decedent was hospitalized and executed powers of attorney with various banks empowering appellee to conduct financial transactions on decedent’s behalf.

On July 10, 1968, decedent purchased 14 year, five percent savings bonds from Philadelphia National Bank in her name in trust for her three daughters in equal $5,000 amounts. Decedent amended her will in October of 1969 to reflect this increased gift of non-probate assets. On July 30, 1970, decedent purchased three five and three-quarters percent savings certificates from Western Savings Bank in her name in trust for each of her daughters in equal $10,000 amounts. The chancellor found that it was decedent’s intention to give appellant and Ms. Gland separate trusts of $35,000 from non-probate assets.

Upon the decedent’s death in November 1970, appellant and Ms. Gland received only the $10,000 savings certificates from Western Savings Bank. This was because, beginning on January 26, 1970, appellee began to redeem all of the savings bonds purchased by decedent in trust for her daughters. Using the powers of attorney executed by her mother in appellee’s favor, appellee redeemed these bonds in her mother’s name, deposited the funds in a joint account she shared with her mother, and then deposited the funds in her sole account. The chancellor found that the redemption of these bonds was not at the request or instruction of the mother. In rejecting appellee’s claim that the redemptions *158 were intended by the decedent to be a gift to appellee, the chancellor found that a confidential relationship existed between appellee and her mother and that this relationship was abused by appellee to her sole benefit. Consequently, a constructive trust in the amount of $25,000 was imposed for the benefit of appellant. Following this adjudication, appellant filed with the court a petition to amend the decree nisi praying that interest from the date of her mother’s death be included in the award. By order of August 13, 1975, the chancellor ruled that this petition was to be treated as an exception to the decree nisi. On July 6, 1976, the chancellor denied appellant’s request for interest and the court en banc affirmed him on September 21, 1976.

Appellee contends that the issue of interest has been waived by appellant’s failure to file exceptions to the chancellor’s supplemental adjudication and decree nisi, as required by Pa.Civil Procedure Rule 1518. 3 We disagree. It is clear from the record that appellant’s Petition to Amend Decree Nisi was intended to be an exception to the chancellor’s original adjudication. Furthermore, the chancellor by order expressly termed it an exception and it was so treated and considered by the chancellor and the court en banc. The chancellor correctly refused to permit faulty nomenclature to obscure the true nature of the pleading. The chancellor was given formal notice by appellant that she did not acquiesce in his adjudication and he was given the opportunity to review the propriety of appellant’s claimed right to pre-verdict interest. In these circumstances, Rule 1518 was complied with. See, Turnway Corp. v. Soffer, 461 Pa. 447, *159 455-56, 336 A.2d 871 (1975). Neither Rule 1518 nor our case law have imposed upon an excepting party the duty to file further exceptions to a supplemental decree responding to the exceptions already filed.

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Bluebook (online)
413 A.2d 1059, 489 Pa. 152, 1980 Pa. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sack-v-feinman-pa-1980.