Stevenson, R. v. Kantor, J., Appeal of: Evans, J.

• Court: Superior Court of Pennsylvania
• Decided: September 26, 2014
• Docket: 222 EDA 2014
• Status: Unpublished

Opinion

J-A25002-14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37

RAQUEL D. STEVENSON, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA DESIREE STEVENSON, A/K/A DESIREE : MELISSA-JANE STEVENSON, : DECEASED, : : v. : : JAMES G. KANTOR, D.O., AARON N. : NEWBERG, M.D., MICHAEL S. CAHAN, : M.D., LEE JAFFEE, D.O., DAVID I. : MECKLER, M.D.; TRI-COUNTY : PEDIATRICS, INC.; ALBERT EINSTEIN : MEDICAL CENTER; AND ALBERT : EINSTEIN HEALTHCASE NETWORK, : : APPEAL OF: JESSE EVANS, APPELLANT : No. 222 EDA 2014

Appeal from the Order entered November 25, 2013, Court of Common Pleas, Philadelphia County, Civil Division at No. October Term, 2010 No. 0302

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 26, 2014

petition to approve a settlement of a wrongful death and survival action filed

affirm.

The trial court aptly summarized the relevant factual and procedural

histories of this case as follows:

The Decedent died on March 9, 2009, at the age of 10, from alleged medical malpractice stemming from the failure of Albert Einstein Medical Center staff to diagnose and treat her viral myocarditis (heart

*Retired Senior Judge assigned to the Superior Court. J-A25002-14

infection). Decedent presented to the hospital with vital signs consistent with a serious heart problem but was left waiting in the emergency room for over an hour after being seen by the attending physician. After being placed on a monitor and having an IV started, lidocaine was ordered but was not administered for another half-hour. After Decedent was finally given the lidocaine, she coded five minutes later and died after attempts at CPR were unsuccessful.

After the lawsuit was filed [Stevenson] filed for bankruptcy. The bankruptcy trustee filed a petition to have Teresa Colleran-Quinn, Esquire, appointed to prosecute the litigation and she obtained a $1.9

***

[a]pprove [settlement of] a [w]rongful [d]eath and [s]urvival [a]ction naming herself as the only

2013, claiming that he was also a beneficiary of

19, 2013, as well as written briefs submitted by both parties, on November 25, 2013, [the trial court]

she requested. On December 3, 2013, [Evans] filed a [m]otion for [r]econsideration that was denied on December 13, 2013.

Trial Court Opinion, 2/20/14, at 1-2.

This timely appeal follows, in which Evans presents only one issue for

the trial court applied an incorrect legal standard and

capriciously disbelieved competent evidence in finding that [Evans], the

biological father of [Decedent], was not entitled to share in the proceeds of

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the [w]rongful [d]eath settlement in the case of Stevenson v. Kantor, et al.?

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.

In re Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation

omitted).

The trial court found that Evans forfeited his right to share in the

wrongful death and survival settlement pursuant to section 2106 of the

Probate, Estates and Fiduciaries Code. This statute provides, in relevant

part, as follows:

-- Any parent who, for one year or upwards previous to the death of the parent's minor or dependent child, has:

(1) failed to perform the duty to support the minor or dependent child or who, for one year, has deserted the minor or dependent child;

shall have no right or interest under this chapter in the real or personal estate of the minor or dependent child. The determination under paragraph (1) shall be made by the court after considering the quality,

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nature and extent of the parent's contact with the child and the physical, emotional and financial support provided to the child.

20 Pa.C.S.A. § 2106(b). In order to establish that forfeiture applies based

upon a failure to support, the proponent of forfeiture must establish that (1)

the decedent was a minor or dependent child; (2) the parent owed a duty of

support to the decedent; (3) the parent failed to perform any duty of

support for the decedent for at least a year prior to the decedent's death;

and (4) the parent's failure was willful. In re Estate of Moyer, 758 A.2d

is aware of the duty to support, has the capacity to perform the duty[,] and

Id. at 212.

The parties stipulated to the first two factors, that is; that Decedent

was a minor at the time of her death and that as a parent, Evans owed a

duty to support her. N.T., 8/19/13, at 3. The trial court found that Father

willfully failed to support Decedent for at least one year prior to her death

Court Opinion, 2/20/14, at 5-7.

Evans divides his argument into four subsections, but the underlying

premise of each subsection is the claim that because Stevenson told him

Decedent was not his, Evans did not know of his duty to support her and so

his failure to support cannot be deemed willful. See -

29.

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testimony that h

the trial court, which we are not permitted to disturb. In re Estate of

Fuller, 87 A.3d at 333.

that Decedent was not his child. N.T., 8/19/13, at 49. Father took no steps

to verify what Stevenson told him through a paternity test, testifying that

Id. Evans claimed that he became aware that Decedent was his

daughter when he re

action, indicating that Stevenson named his as the father. Id. at 63, 81-82.

In contrast, Stevenson testified that she never made such a statement

to Evans; Evans just stopped coming to visit Decedent after the first few

months of her life and never made contact with her again. Id. at 12. The

parents and

names in the viewing registry. Id. at 52, 79-

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Id.

Decedent was his daughter. Id. at 81. This evidence, as found credible by

s knew

Decedent was his child. See Fid. Nat. Title Ins. Co. of New York v.

Suburban W. Abstractors, 852 A.2d 318, 322 (Pa. Super. 2004) (holding

that the finder of fact is entitled to believe all, part, or none of the

mination is supported by the evidence,

we may not disturb it.1 In re Estate of Fuller, 87 A.3d at 333.

See -

32.2 The t

In

re Estate of Fuller, 87 A.3d at 333, and so these arguments are unavailing.

Order affirmed.

standard, he admitted that he was employed or receiving disability income

for Decedent in the year preceding her death. N.T., 8/19/13, at 60, 71-72. 2 For instance, Evans attempts to analogize or distinguish the facts in his case from prior decisions of this Court. However, in doing so, Evans builds his discussions on the foundation that he did not believe Decedent was his child. See -28. As we have discussed, the trial court

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014

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