The Estate of Small, L., Appeal of: Small, J.

J-A29002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ESTATE OF CHARLES L. : IN THE SUPERIOR COURT OF SMALL : PENNSYLVANIA : : APPEAL OF: JUANITA SMALL, AS : : Petitioner : : AND ADMINISTRATOR OF THE : No. 744 EDA 2018 ESTATE OF CHARLES L. SMALL :

Appeal from the Decree February 28, 2018 In the Court of Common Pleas of Philadelphia County Orphans' Court at No(s): No: 617DE-2017

BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E. MEMORANDUM BY OTT, J.: FILED JANUARY 28, 2019

Juanita Small, as Petitioner, and Administrator of the Estate of Charles L. Small (Mother), appeals from the decree entered February 28, 2018, in the Court of Common Pleas of Philadelphia County, that denied her “Petition for Forfeiture of the Estate Pursuant to 20 Pa.C.S. § 2106” following an evidentiary hearing. Based on the following, we affirm on the basis of the orphans’ court’s well-reasoned opinion.

The orphans’ court has ably summarized the facts and procedural history underlying this appeal. Therefore, there is no need to set forth the background of this case. See Orphans’ Court Opinion, 6/7/2018 at 1–3. We simply state that, on July 11, 2013, Charles L. Small (Decedent) died intestate without a spouse or children, at the age of 37. Decedent had been a

____________________________________ * Former Justice specially assigned to the Superior Court.

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paraplegic since the age of 18 when he was shot.1 Following Decedent’s death, the Estate of Charles L. Small (Estate) recovered $90,000.00 as the result of the settlement of a medical malpractice action brought by the Estate. Mother asserts Laverne Dollard (Father) forfeited any right to share in the assets of the Estate under 20 Pa.C.S. § 2106(b).

Mother presents the following two questions for our review:

Whether the trial court erred when it concluded, against the weight of the evidence, that [Decedent] was not a dependent child under the Forfeiture Statute, 20 Pa.C.S.A. § 2106(b)?

Whether the trial court erred by failing to apply the Forfeiture Statute to determine whether [Father] forfeited his right to take in the [E]state of Charles Small?

See Mother’s Brief at 4.2

At the outset, we state our standard of review:

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

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1 Mother’s petition for forfeiture avers Decedent was 16 years of age when he became a paraplegic as a result of a gunshot. See Petition for Forfeiture Pursuant to 20 Pa.C.S. § 2106(b), 5/9/2017, at ¶5. There was also testimony that Decedent was 18 years of age when he became a paraplegic as a result of a gunshot. See N.T., 2/26/2018, at 10, 43, 51, and 72. See also id. at 85.

2Mother timely complied with the orphans’ court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

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the court relied are palpably wrong or clearly inapplicable, we will reverse the court's decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation omitted). Relevant to this appeal, Section 2106(b) provides, in relevant part:

(b) Parent’s share.--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, 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. § 2106(b)(1).

Having examined the record, the briefs of the parties, the above-cited statute, relevant case law, and the well-reasoned opinion of the Honorable George W. Overton, we conclude Mother’s issues warrant no relief. Judge Overton’s opinion fully addresses and properly disposes of the questions raised by Mother in this appeal. See Orphans’ Court Opinion, 6/7/2018, at 3– 5 (finding, (1) the forfeiture statute, 20 Pa.C.S. § 2106(b), provides that a parent’s share may be forfeited “previous to the death of the parent’s minor or dependent child”; (2) the purpose of the statute is to protect minor or dependent children who are not legally competent to effectuate a will, In re Kistner, 858 A.2d 1226, 1228 (Pa. Super. 2004); (3) Decedent was 37 years old at the time of his death, was not a minor, and based on the evidence, was

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not a dependent child; (4) Decedent was never adjudicated an incapacitated person, declared incompetent, or appointed a guardian, (5) both Decedent’s parents and his girlfriend/caregiver testified he could do everything but walk; (6) Decedent had no mental impairment; (7) having a home health care aide and collecting disability does not make one a dependent child under the forfeiture statute; (8) as in Kistner, if Decedent believed Father failed to perform his duty to support him or had deserted him, he could have executed a last will and testament disposing of his estate accordingly; (9) Kistner’s analysis of the forfeiture statute relative to an adult decedent’s estate as opposed to a minor’s estate and its broad language is relative to and controlling in the instant case; (10) based on the evidence submitted, Decedent was not a dependent person; and (11) where the decedent is not a minor or dependent child at the time of his death, the forfeiture provisions of Section 2106(b) are inapplicable. We agree with this analysis.

We add that Mother’s reliance on the definition of “dependent child” in 34 Pa. Code § 65.151 is misplaced as that provision applies to unemployment compensation. Furthermore, Mother’s argument — that the orphans’ court’s rationale that Decedent “could have executed a last will and testament” does not apply here because Decedent had no assets and no reason to make a will — is unpersuasive. The issue of assets/reason to make a will is irrelevant; the issue is the protection of minor or dependent children who are not legally competent to make a will. See Kistner, supra, 858 A.2d at 1228 (“The

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purpose of the forfeiture statute is to prevent a parent, who has failed to carry out his or her duty of support, from gaining a ‘windfall’ from a minor child’s death. In addition, the statute protects minor or dependent children who are not legally competent to effectuate a will[.]”) (emphasis added).

Therefore, we affirm the Decree based upon the sound reasoning of the orphans’ court.3

Decree affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/28/19 ____________________________________________

3In the event of further proceedings, the parties are directed to attach a copy of Judge Overton’s opinion, filed June 7, 2018, to this memorandum.

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