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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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.
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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.
1
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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