Shell, I. v. Shell, B.

J-A19034-23

2023 PA Super 195

ISABEL SHELL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY M. SHELL, :
ADMINISTRATOR OF THE ESTATE OF :
PAUL LEE SHELL, DECEASED :
:
Appellant : No. 442 EDA 2023

Appeal from the Order Entered January 31, 2023
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2021-03268

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED OCTOBER 3, 2023

Bradley M. Shell (Administrator), administrator of the estate of Paul Lee

Shell (Decedent), appeals from the order entered in the Court of Common

Pleas of Northampton County (trial court) discontinuing the divorce action filed

by Isabel Shell (Wife). We affirm.

I.

Decedent and Wife married in 1988 and lived in Florida. Both had

children from prior relationships but did not have any children together. In

May 2019, the two separated and never lived together again after Husband

was moved to a senior living facility in Pennsylvania. Two years later, Wife

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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filed a complaint in divorce under Section 3301(d) of the Divorce Code, 23

Pa.C.S. § 3301(d), alleging that the parties have lived separate and apart for

at least one year and that the marriage was irretrievably broken.1 Decedent

never answered the complaint.

Wife also petitioned for special relief in relation to an investment account

that she and Decedent opened in 2000. Wife was the account’s sole “transfer

on death” beneficiary until February 2020 when Decedent removed her as the

beneficiary and named two of his sons (including Administrator) the

beneficiaries. Asserting the account was a marital asset subject to equitable

distribution, Wife requested that Administrator reinstate her as the beneficiary

during the divorce proceedings, and that the account be neither liquidated nor

distributed in any way during the proceedings except by order of the trial

court. Upon agreement of the parties, the trial court directed that Wife be

reinstated as the sole beneficiary until further order of the court.

On August 9, 2022, while the divorce action was pending, Decedent

passed away, following which Administrator applied for and was granted

letters of administration and substituted as a successor party. Wife meanwhile

praeciped to withdraw the divorce complaint and discontinue the divorce

action. Administrator responded by petitioning to set aside Wife’s praecipe.

____________________________________________

1 Wife filed her complaint on May 13, 2021, but later amended it on June 24,

2021.

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After an evidentiary hearing, the trial court issued its order and opinion

discontinuing the divorce action. The trial court explained that the sole issue

was whether the parties’ economic rights and obligations arising from the

marriage would be determined under the Divorce Code, 23 Pa.C.S. §§ 3101-

3904, or whether the divorce action should be discontinued so that all property

rights would be determined under the Probate, Estates and Fiduciary Code

(PEF Code), 20 Pa.C.S. §§ 101-8815. See Trial Court Opinion (TCO), 1/31/23,

at 2. As a result, the trial court noted that resolution was controlled by

Sections 3323(d.1) and 3323(g)(3) of the Divorce Code:

(d.1) Death of a party.--In the event one party dies during the
course of divorce proceedings, no decree of divorce has been
entered and grounds have been established as provided in
subsection (g), the parties’ economic rights and obligations arising
under the marriage shall be determined under this part rather
than under 20 Pa.C.S. (relating to decedents, estates and
fiduciaries).

***

(g) Grounds established.--For purposes of subsections (c.1)
and (d.1), grounds are established as follows:

***

(3) In the case of an action for divorce under section
3301(d), an affidavit has been filed and no counter-affidavit has
been filed or, if a counter-affidavit has been filed denying the
affidavit’s averments, the court determines that the marriage is
irretrievably broken and the parties have lived separate and apart
for at least one year at the time of the filing of the affidavit.

23 Pa.C.S. § 3323.

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Even though no party filed an affidavit under Section 3301(d),

Administrator asserted that grounds were established when Wife filed for

divorce and claimed that the marriage was irretrievably broken and that the

parties had lived separate and apart for the required time. See TCO at 3-4.

On this point, Administrator contended that the verification executed by Wife

and attached to the complaint could be considered an “affidavit” because, as

that term is defined in the Judicial Code, it was “an unsworn document

containing statements of fact and a statement by the signatory that it is made

subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification

to authorities).” Id. at 4 (citing 42 Pa.C.S. § 102). Thus, Administrator did

not believe that the “affidavit” referred to in Section 3323(g)(3) did not have

to be an affidavit under Section 3301(d). Id. at 5.

Finding this argument unpersuasive, the trial court first noted that

Decedent’s failure to answer the complaint did not result in its averments

being considered admitted because averments in a divorce complaint are

“deemed denied unless admitted by an answer” under Pennsylvania Rule of

Civil Procedure 1920.14(a), Pa.R.Civ.P. 1920.14(a). Id. at 5-6. Because the

averments were considered denied, the trial court held that the divorce action

could not proceed until an affidavit was filed by a party. Id. at 6.

The trial court also found that Administrator’s position was not

supported by Section 3323(g)(3)’s statutory language because the “affidavit”

referred to in Section 3323(g)(3) had to be in the format provided in

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Pennsylvania Rule of Civil Procedure 1920.72, Pa.R.Civ.P. 1920.7. See TCO

at 7-8. As there was no dispute that no such affidavit was ever filed, and

there being no authority that alternative means for establishing grounds are

available under Section 3323(g)(3), the trial court found that grounds were

not established. Id. at 8.

Administrator filed this appeal to raise two issues. First, he reasserts

that Wife’s complaint and petition for special relief satisfied Section

3323(g)(3)’s affidavit requirement and that the trial court erred in concluding

that an affidavit conforming to Rule 1920.72 must be filed before grounds for

divorce can be established. Second, Administrator argues that Wife is

estopped from denying grounds were established when, in order to obtain a

favorable order, she asserted in her petition for special relief that “grounds

here have been established for the divorce to proceed.”

II.

We first address whether Section 3323(g)(3) requires the filing of an

affidavit under Section 3301(d) for establishing grounds for divorce.

Administrator concedes no such affidavit was ever filed but nonetheless

contends that an affidavit is not needed for establishing grounds under Section

3323(g)(3) because the statute does not define “affidavit” or require that the

affidavit be in a particular form or comply with another statute or rule. In the

absence of such instruction, Administrator urges this Court to look to the

General Assembly’s legislative intent in enacting Section 3323(g) in

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preventing the inequity that can sometimes result from a divorce action

automatically abating when a party dies. He asks us to find that Wife’s

complaint and petition for special relief sufficed as affidavits for establishing

grounds under Section 3323(g)(3), as the verifications in those documents

meet the definition for an “affidavit” provided in the Judicial Code, which, as

noted, is an “unsworn document containing statements of fact and a

statement by the signatory that it is made subject to the penalties of 18

Pa.C.S. § 4904 (relating to unsworn falsification to authorities).” 42 Pa.C.S.

§ 102.

Because this issue is essentially one of statutory interpretation involving

a question of law, our standard of review is de novo and our scope of review

is plenary. See Turnpaugh Chiropractic Health and Wellness Ctr., P.C.

v. Erie. Ins. Exch., 297 A.3d 404, 417 (Pa. Super. 2023) (citation omitted).

We are thus mindful of the following:

[t]he Statutory Construction Act directs that the object of all
interpretation and construction of statutes is to ascertain and
effectuate the legislature’s intent. 1 Pa.C.S. § 1921(a);
Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd.
of Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). Generally, the
best indicator of legislative intent is the plain language of the
statute. Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). In
construing statutory language, “[w]ords and phrases shall be
construed according to rules of grammar and according to their
common and approved usage[.]” 1 Pa.C.S. § 1903(a). When the
words of a statute are clear and unambiguous, there is no need to
look beyond the plain meaning of the statute “under the pretext
of pursuing its spirit.” 1 Pa.C.S. § 1921(b); Commonwealth v.
Conklin, 897 A.2d 1168, 1175 (Pa. 2006). Only “[w]hen the
words of the statute are not explicit” may a court resort to the
rules of statutory construction, including those provided in 1

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Pa.C.S. § 1921(c). Chanceford, 923 A.2d at 1104. A statute is
ambiguous when there are at least two reasonable interpretations
of the text under review See Delaware Cnty. v. First Union
Corp., 992 A.2d 112, 118 (Pa. 2010). Moreover, “[s]tatutes in
pari materia shall be construed together, if possible, as one
statute.” 1 Pa.C.S. § 1932. Finally, it is presumed “[t]hat the
General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1).

Turnpaugh, 404 A.3d at 417-18 (internal citations altered; citation omitted).

In 1980, the General Assembly enacted the Divorce Code, which

provided for the first time entry of no-fault divorces. Section 3301 of the

Divorce Code outlines the various grounds for divorce, including irretrievable

breakdown of the marriage under Section 3301(d).

(d) Irretrievable breakdown.

(1) The court may grant a divorce where a complaint has been
filed alleging that the marriage is irretrievably broken and an
affidavit has been filed alleging that the parties have lived
separate and apart for a period of at least one year and that the
marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the
affidavit but, after notice and hearing, the court determines that
the parties have lived separate and apart for a period of at least
one year and that the marriage is irretrievably broken.

23 Pa.C.S. § 3301(d).

Not long after the Divorce Code was enacted, our Supreme Court

promulgated new procedural rules to implement the Divorce Code. Among

these included Pa.R.Civ.P. 1920.42, authorizing entry of a divorce decree

under Sections 3301(c) and 3301(d) without further proceedings when the

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parties have satisfied certain filing and notice requirements. Relevant here,

subsection (c) of the rule sets out six requirements before a court may enter

a divorce decree under Section 3301(d), including, among others, the filing of

an affidavit and serving it on the other party along with a counter-affidavit.

(c) Obtaining a divorce decree under Section 3301(d) of
the Divorce Code.

If a party has filed a complaint requesting a divorce on the ground
of irretrievable breakdown and the requisite separation period has
elapsed, the court shall enter a decree in divorce after:

(i) proof of service of the complaint has been filed;

(ii) a party has signed and filed an Affidavit under Section
3301(d) of the Divorce Code averring that the marriage is
irretrievably broken and that the parties have been separate and
apart for the required separation period;

(iii) the filed Affidavit and a blank Counter-Affidavit under
Section 3301(d) of the Divorce Code have been served on the
other party consistent with Pa.R.C.P. No. 1930.4, and the other
party has admitted or failed to deny the averments in the Affidavit
under Section 3301(d) of the Divorce Code;

(A) If a party files a Counter-Affidavit under Section 3301(d) of
the Divorce Code denying an averment in the Affidavit under
Section 3301(d) of the Divorce Code, including the date of
separation, either party may present a motion requesting the
court resolve the issue.

(B) After presentation of the motion in subdivision (A), the court
may hear the testimony or, consistent with Pa.R.C.P. No.
1920.51(a)(1)(ii)(D), appoint a hearing officer to hear the
testimony and to issue a report and recommendation.

Note: This subdivision requires service of the Counter-Affidavit on
the nonmoving party consistent with original process since the
averments in the moving party's Affidavit under § 3301(d) of the
Divorce Code are deemed admitted unless denied. See Pa.R.C.P.

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No. 1930.4 for service of original process and Pa.R.C.P. No.
1920.14(b) regarding failure to deny averments in the affidavit.

(iv) the ancillary claims under Pa.R.C.P. Nos. 1920.31 and
1920.33 have been withdrawn by the party raising the claims,
have been resolved by agreement of the parties or order of court,
have not been raised in the pleadings, or in the case of a
bifurcated divorce, the court has retained jurisdiction of the
ancillary claims;

(v) a minimum of 20 days from the date of service of the
Affidavit and blank Counter-Affidavit under Section 3301(d) of the
Divorce Code as set forth in (c)(1)(iii), the party requesting the
divorce decree has served on the other party a Notice of Intention
to File the Praecipe to Transmit Record, which included a copy of
the proposed Praecipe to Transmit Record that indicated the date
and manner of service of the Notice of Intention to File the
Praecipe to Transmit Record, except that service of such Notice of
Intention is not required if:

(A) the parties have signed and filed Waivers of Notice of Intention
to File the Praecipe to Transmit Record; or

(B) the court finds that an attorney has not entered an appearance
on the defendant’s behalf and that the defendant cannot be
located after a diligent search; and

(vi) the party requesting the divorce decree has completed
and filed a Praecipe to Transmit Record. If the parties have not
waived the Notice of Intention to File the Praecipe to Transmit
Record, the moving party shall wait a minimum of 20 days after
service of the Notice of Intention to File the Praecipe to Transmit
Record before filing the Praecipe to Transmit Record.

Pa.R.Civ.P. 1920.42(c)(1)(i)-(vi).

Besides laying out the procedural requirements for a divorce under

Section 3301(d), the General Assembly also provided the form of the

complaint, affidavit and counter-affidavit for a divorce under Section 3301(c)

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and Section 3301(d). These are all provided in Rule 1920.72, with subsection

(d) of the rule prescribing the form for an affidavit under Section 3301(d).

(d) The Affidavit under Section 3301(d) of the Divorce Code
required by Pa.R.C.P. No. 1920.42(c)(1)(ii) shall be substantially
in the following form:
(Caption)
NOTICE

If you wish to deny any of the statements set forth in this affidavit,
you must file a counter-affidavit within 20 days after this affidavit
has been served on you or the statements will be admitted.

AFFIDAVIT UNDER SECTION 3301(d) OF THE DIVORCE
CODE

1. The parties to this action separated on insert date.

2. Check (a) or (b):

(a) The date of separation was prior to December 5, 2016, and
the parties have continued to live separate and apart for a period
of at least two years.

(b) The date of separation was on or after December 5, 2016,
and the parties have continued to live separate and apart for a
period of at least one year.

3. The marriage is irretrievably broken.

4. I understand that I may lose rights concerning alimony, division
of property, lawyer’s fees, costs and expenses, or other important
rights if I do not claim them before a divorce is granted.

I verify that the statements made in this affidavit are true and
correct. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn
falsification to authorities.

Date:_______________________________________________
(PLAINTIFF) (DEFENDANT)

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Pa.R.Civ.P. 1920.72(d).2

We turn next to what happens to a divorce action when one of the

parties dies.

Pennsylvania courts have long held that an action in divorce
abates upon the death of either party. Yelenic v. Clark, 922 A.2d
935, 938 (Pa. Super. 2007) (citing, inter alia, Estate of
Pinkerton v. Pinkerton, 646 A.2d 1184 (Pa. 1994)). The
rationale for this principle is that an action in divorce is personal
to the parties and upon the death of either party, the action
necessarily dies. Id. The primary purpose of divorce is to change
the relation of the parties; and, when the death of a party occurs,
that purpose can no longer be achieved because the marital
relationship has been ended by death. Id. (citing Drumheller v.
Marcello, 532 A.2d 807, 808 (Pa. 1987).)

In 2005, however, the Divorce Code was amended to provide an
exception: a divorce action will not abate upon the death of a
party, so long as the grounds for divorce have been established
as provided in 23 Pa.C.S.A. § 3323(g) (“Grounds established.”).
Id.; see also 23 Pa.C.S.A. § 3323(d.1) (“Death of a party.”). If
the § 3323(g) grounds have been established, then, although no
divorce decree will be granted posthumously, the parties’
economic rights and obligations are determined under the Divorce
Code rather than the elective share provision of the Probate Code.
See Yelenic, 922 A.2d at 941-942; see also Gerow v. Gerow,
962 A.2d 1206 (2008).

Berry v. Berry, 197 A.3d 788, 802-03 (Pa. Super. 2018) (some citations

altered).3

____________________________________________

2 Rule 1920.72(e)(3) provides the form for the counter-affidavit required by

Rule 1920.42(c)(1)(iii) and Rule 1920.42(c)(2)(i), the latter of which applies
when the parties have complied with subsections (c)(1)(ii)-(iii) and cannot
resolve their ancillary claims.

3 In Tosi v. Kizis, 85 A.3d 585, 589-90 (Pa. Super. 2014), this Court held

that Section 3323(d.1) was inapplicable when a surviving plaintiff voluntarily
(Footnote Continued Next Page)

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As noted, when a party dies while a divorce action is pending, Section

3323(g) provides three avenues for establishing grounds, all of which

correspond to the different subsections of Section 3301 for seeking divorce.

(g) Grounds established.--For purposes of subsections (c.1)
and (d.1), grounds are established as follows:

(1) In the case of an action for divorce under section
3301(a) or (b) (relating to grounds for divorce), the court adopts
a report of the master or makes its own findings that grounds for
divorce exist.

(2) In the case of an action for divorce under section
3301(c), both parties have filed affidavits of consent or, if the
presumption in section 3301(c)(2) is established, one party has
filed an affidavit of consent.

(3) In the case of an action for divorce under section
3301(d), an affidavit has been filed and no counter-affidavit has
been filed or, if a counter-affidavit has been filed denying the
affidavit’s averments, the court determines that the marriage is
irretrievably broken and the parties have lived separate and apart
for at least one year at the time of the filing of the affidavit.

23 Pa.C.S. § 3323(g) (emphasis added).

After review, we cannot conclude that the General Assembly intended

to dispense with all these procedural requirements for obtaining a divorce

____________________________________________

discontinued divorce proceedings before a decree is entered but after grounds
for divorce are established. Our decision in Tosi was superseded when our
Supreme Court promulgated Rule of Civil Procedure 1920.17(d), Pa.R.Civ.P.
1920.17(d). Under that rule, when a party dies during divorce proceedings
and grounds have been established but no decree has been issued, “neither
the complaint nor economic claims can be withdrawn except by the consent
of the surviving spouse and the personal representative of the decedent. If
there is no agreement, the economic claims shall be determined pursuant to
the Divorce Code.” Pa.R.Civ.P. 1920.17(d).

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decree under Section 3301(d) when it enacted Sections 3323(d.1) and

3323(g)(3) to allow for avoiding abatement of a divorce action when a party

dies but grounds were established before the party’s death. First, the plain

language of Section 3323(g)(3) requires the filing of an affidavit under Section

3301(d). Section 3323(g)(3) states that grounds are established for a divorce

under Section 3301(d) when “an affidavit has been filed.” We cannot ignore

this plain language under the guise of advancing the statute’s intent when the

General Assembly has made its intent clear: grounds under Section 3301(d)

are not established unless “an affidavit has been filed,” that is, an affidavit

stating that the marriage is irretrievably broken and that the parties have lived

separate and apart for at least one year at the time of the filing of the affidavit.

We also agree with the trial court that the “affidavit” contemplated in

Section 3323(g)(3) must be in the form set forth under Rule 1920.72(d) and

required by Rule 1920.42(c) in order to obtain a divorce decree under Section

3301(d), as no conflict exists between those rules and the statute. As this

Court has explained, “[d]ivorce actions are to be in conformity with the

procedural requirements imposed by the rules of civil procedure, as well as

statutory law.” Reece v. Reece, 66 A.3d 790, 793 (Pa. Super. 2013)

(citations omitted). Indeed, as discussed below, our Supreme Court has

recognized the General Assembly enacted Sections 3323(d.1) and 3323(g) to

“ensure that where the parties have met the necessary requirements for the

issuance of a divorce decree prior to a party’s death, the death will not remove

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the adjudication of economic claims from the divorce action.” In re Estate

of Easterday, 209 A.3d 331, 340 (Pa. 2019).

As discussed, to obtain a divorce decree under Section 3301(d), Rule

1920.42(c) requires that the party seeking divorce (1) file “proof of service of

the complaint”; (2) sign and file an affidavit under Section 3301(d); (3) serve

the other party with the affidavit and a counter-affidavit; (4) resolve or

withdraw any ancillary claims; (5) wait at least 20 days before serving a notice

of intention to file the praecipe to transmit record; and (6) file the praecipe to

transmit record. See Pa.R.Civ.P. 1920.42(c)(1)(i)-(vi). The note to Rule

1920.42(c) expressly references Rule 1920.72(d) for the affidavit under

Section 3301(d). See Pa.R.Civ.P. 1920.42(c), note. Here, there can be no

dispute that Decedent and Wife did not meet the requirements for obtaining

a divorce decree under Rule 1920.42 before Decedent died, as the parties met

only the first requirement of proof of service of the complaint being filed and

none of the others. As a result, the parties did not meet the procedural

requirements for obtaining a divorce under Section 3301(d) before Decedent’s

death.

Yet Administrator insists that compliance with the Rules of Civil

Procedure is not necessary because Section 3323(g)(3) says nothing about

the particular format for the affidavit or the parties needing to comply with

any statute or a rule. Our Supreme Court rejected essentially this same

argument a few years ago in Easterday, holding that the General Assembly

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did not intend to dispense with the procedural requirements for obtaining a

divorce under Rule 1920.42 when it enacted Sections 3323(d.1) and 3323(g).

In Easterday, the husband bought a $250,000 life insurance policy and

designated his wife the beneficiary. After the parties separated, wife filed for

divorce under Section 3301(c), which permits the entry of a divorce decree

when, among other things, the parties file affidavits consenting to the divorce.

Both husband and wife signed and filed their affidavits, but husband’s affidavit

was not signed within 30 days of the filing as required by Rule 1920.42(b)(2),

the procedural rule for obtaining a divorce under Section 3301(c). As a result,

the prothonotary returned the affidavits as invalid, and the parties did not sign

and file new affidavits before husband died.

After husband’s death, wife withdrew the divorce action and applied for

the life insurance proceeds. In response, Husband’s estate petitioned for wife

to return the proceeds. In support, the estate relied on Section 6111.2 of the

PEF Code, 20 Pa.C.S. § 6111.2, which provides that when a life insurance

policyholder dies during divorce proceedings, the designation of a spouse is

ineffective if grounds for divorce have been established under Section

3323(g). Wife responded that Section 6111.2 was inapplicable because

husband never filed a valid affidavit of consent. After both the orphans’ court

and this Court agreed with wife and held that Section 6111.2 was inapplicable,

our Supreme Court granted allocatur to determine whether “the General

Assembly intended to incorporate the thirty-day procedural requirement of

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Pa.R.C.P. 1920.42, with regard to the filing of affidavits of consent in divorce

actions, into 20 Pa.C.S. § 6111.2, where the language of that section is clear

and unambiguous and does not contain such time limitation[.]” Easterday,

209 A.3d at 338.

Concluding that the General Assembly intended to incorporate the 30-

day requirement under Rule 1920.42, the Supreme Court first observed that,

“[i]n practical effect, sections 3323(d.1) and (g) ensure that where the parties

have met the necessary requirements for the issuance of a divorce decree

prior to a party’s death, the death will not remove the adjudication of economic

claims from the divorce action.” Id. at 340. The Court found it “unsurprising”

that Section 3323(g)(2)’s requirements were identical to those outlined in

Section 3301(c), which defines the criteria for a mutual consent divorce. Id.

Indeed, the Court noted, Section 3323(g)(2) was essentially “no more than a

restatement of section 3301(c), as both require that the parties have filed

affidavits of consent.” Id.

Building off this, the Court also recognized that when the Divorce Code

was enacted, it exercised its rulemaking authority by drafting new procedural

rules for implementing the Divorce Code. Id. at 341. Among these new rules

was Rule 1920.42(b), “providing that affidavits of consent must be filed within

thirty days of execution in order to trigger the procedure by which the court

would enter a divorce decree by mutual consent without a hearing or further

proceedings.” Id. Thus, by requiring the affidavits to be executed within 30

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days of its filing, Rule 1920.42(b) ensured that the affiants’ consent to the

divorce reflected their current intentions. Id.

It next observed that in the decades after it promulgated Rule

1920.42(b), the General Assembly amended the Divorce Code on multiple

times but never did so “in a manner that would either eliminate or in any

respect alter this Court’s inclusion of a timing requirement for the signing of

an affidavit of consent (i.e., within thirty days of filing) to effectuate a no-fault

divorce under section 3301(c).” Id. Since the General Assembly is presumed

to be aware of existing law when enacting legislation, the Court presumed that

the General Assembly was aware of Rule 1920.42(b)'s 30-day validity

requirement when it enacted Section 3323(g)(2) requiring the filing of

affidavits of consent to establish grounds for a mutual consent divorce. Id.

The Court added that “[s]ection 3323(g)(2) is substantively identical to

section 3301(c), with only minor discrepancies in phrasing, and, as discussed

above, the aim of section 3323(g)(2) is virtually identical to the aim of section

3301(c) – to ascertain the certainty of the parties’ present intent to divorce at

the time of the death of a spouse – as reflected by the fact that both spouses

have executed affidavits of consent within thirty days of their filing.” Id. at

342.

The Court continued that it found it dispositive that “when enacting

section 3323(g)(2), the General Assembly offered no indication that it

intended to eliminate or alter Rule 1920.42(b)(2)’s thirty-day validity

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requirement with respect to application of section 3323(d.1)’s instructions

when a spouse dies during the course of divorce proceedings.” Id. In fact,

the Court added that the inclusion of no language “in section 3323(g)(2) to

signal an end to the necessity of compliance with Rule 1920.42(b)(2), clearly

reflect[ed] the General Assembly’s intent that for purposes of application of

section 3323(d.1) upon the death of a spouse, the decedent’s affidavit of

consent reflected a present consent to divorce at the time of his or her death.”

Id. It found that “Rule 1920.42(b)(2)’s validity requirement is equally

important to the granting of a section 3301(c) mutual consent divorce and to

the determination of economic rights and obligations under section 3323(d.1)

when a spouse dies during the course of divorce proceedings, as both

circumstances require the filing of affidavits of consent reflecting the present

intentions of the parties to divorce.” Id. Accordingly, the Court held that

grounds were not established under Section 3323(g)(2) because the parties

did not comply with the Court’s long-standing timing requirement under Rule

1920.42(b)(2). Id.

While Easterday involved Section 3323(g)(2), we have no hesitation in

applying its holding here to Section 3323(g)(3). As discussed, the husband’s

estate in Easterday asserted essentially the same argument that

Administrator tries to make here: that compliance with Rule 1920.42 for

obtaining a divorce decree is not required before a decedent’s death for

establishing grounds under Section 3323(g). Both rely on the same

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reasoning—that the General Assembly’s failure to specify in Section 3323(g)

that compliance with other statutes or rules indicated the General Assembly’s

intent to dispense with such procedural formalities in the interest of avoiding

automatic abatement of divorce actions and allowing surviving spouses to

pursue equitable distribution through the Divorce Code. However, as our

Supreme Court in Easterday explained, because Rule 1920.42 was

promulgated over two decades before Sections 3323(d.1) and 3323(g) were

enacted, we can presume the General Assembly was aware of Rule 1920.42’s

procedural requirements when it enacted those sections yet gave no indication

that it intended to dispense with those requirements when a party to a divorce

died. See Easterday, 209 at 342. Contrary to Administrator’s position, our

Supreme Court found that Section 3323(g)’s silence about compliance with

any of the established procedural rules for obtaining a divorce weighed in favor

of finding that the General Assembly did not intend to discard such rules upon

the death of party.

This same reasoning applies here. When the General Assembly enacted

Section 3323(g)(3), it was presumably aware of Rule 1920.42(c) and the

several procedural prerequisites for obtaining a divorce under Section

3301(d). Among these requirements are not only filing proof of service of the

complaint but also filing of an affidavit under Section 3301(d) and serving the

other party with both the affidavit and a blank counter-affidavit. See

Pa.R.Civ.P. 1920.42(c)(1)(i)-(iii). Indeed, these requirements correspond to

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those that the General Assembly laid out in Section 3301(d), which permits

divorce (1) where a complaint has been filed alleging that the marriage is

irretrievably broken, (2) an affidavit has been filed alleging that the parties

have lived separate and apart for a period of at least one year and that the

marriage is irretrievably broken, and (3) the defendant either does not deny

the allegations in the affidavit or denies one or more of the allegations in the

affidavit but, after notice and hearing, the court determines that the parties

have lived separate and apart for a period of at least one year and that the

marriage is irretrievably broken. See 23 Pa.C.S. § 3301(d). Thus, like the

Easterday Court found concerning Sections 3301(c) and 3323(g)(2), we find

that Sections 3301(d) and 3323(g)(2) have not only substantially identical

phrasing but also aims in ensuring that grounds for divorce are not established

under Section 3301(d) until one of the parties has filed an affidavit with the

required allegations and the other party either admits the allegations or, if the

allegations are denied, the trial court determines that the parties have lived

separate and apart for a period of at least one year and the marriage is

irretrievably broken.

To sum up, we find no error in the trial court’s finding that grounds were

not established under Section 3323(g)(3) because no affidavit was ever filed.

We further reject Administrator’s argument that Wife’s verification attached

to the divorce complaint or the petition for special relief satisfied Section

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3323(g)(3)’s requirement that an affidavit be filed. We find Administrator’s

first issue warrants no relief.

III.

Administrator next argues that Wife is judicially estopped from now

claiming that grounds were not established when, in order to obtain a

favorable ruling on her petition for special relief, she stated that “grounds here

have been established for the divorce to proceed.” Petition for Special Relief,

5/21/21, ¶ 17 (R. 140a). He contends that Decedent relied on Wife’s

statement in agreeing to the trial court directing that Wife be reinstated as

the sole beneficiary of the investment account during the divorce proceedings.

Furthermore, Administrator contends that Wife asserted that grounds were

established when it suited her for obtaining relief but has now reversed course

and denied that grounds were established when it would benefit her to have

the parties’ property rights determined under the PEF Code.

As this Court has explained concerning the doctrine of judicial estoppel:

Our Supreme Court has held that as a general rule, a party to an
action is estopped from assuming a position inconsistent with his
or her assertion in a previous action, if his or her contention was
successfully maintained. Accordingly, judicial estoppel is properly
applied only if the court concludes the following: (1) that the
appellant assumed an inconsistent position in an earlier action;
and (2) that the appellant’s contention was successfully
maintained in that action.

Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010) (citations

and quotation marks omitted). “The purpose of this doctrine is to uphold the

integrity of the courts by preventing parties from abusing the judicial process

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by changing positions as the moment requires.” Bugosh v. Allen

Refractories Co., 932 A.2d 901, 912 (Pa. Super. 2007) (citation and

quotation marks omitted).

After review, the record does not support Administrator’s attempt to

invoke the doctrine of judicial estoppel. First, while Wife’s petition stated that

“grounds here have been established for the divorce to proceed,” the petition

neither alleged that the marriage was irretrievably broken nor that the parties

have lived separate and apart for the requisite period, both of which would

need to be attested to in an affidavit or determined to be established by a trial

court under Section 3323(g)(3).

Second, while Administrator contends that he relied on Wife’s allegation

in agreeing to the special relief, there is no record to support this claim, as

Administrator does not point us to anything in the record showing that he

agreed with or relied on Wife’s statements in asserting that grounds for

divorce under Section 3301(d) were established in assenting to her being

reinstated as the investment account’s sole beneficiary during the pendency

of the divorce.

Finally, we find nothing in the trial court’s order concerning Wife’s

request that would indicate grounds for judicial estoppel were established.

Indeed, the order merely acknowledges that the “parties have agreed that the

within matter is resolved” and directs that Decedent’s sons be removed as the

primary beneficiaries of the investment account and that Wife be reinstated

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as sole beneficiary, adding that this “beneficiary designation shall remain in

effect until further Order of Court.” Order, 6/21/21 (R. 143a). The trial court

made no determination concerning the state of the marriage, nor did it make

any determination about grounds for divorce under Section 3301(d).

Instead, the court merely directed that Wife be reinstated as the

account’s sole beneficiary until further determination, hardly any kind of

determination of whether the marriage was irretrievably broken or whether

the parties have lived separate and apart for at least a year. Accordingly, we

find no merit in Administrator’s argument that Wife is now estopped from

claiming that grounds for divorce were not established under Section

3323(g)(3).

Order affirmed.

Date: 10/3/2023

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