Judges Opinions Public Notices, — June 30, 2020 8:58 — 0 Comments

Public Notices, June 17, 2020

Volume 57, No. 46

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

FICTITIOUS NAME

 

TABLE OF CONTENTS

Megan E. Pulaski v. Jeremy J. Pulaski (Cont’d)

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF LIGHT W. SHEARER, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Holly J. Mihok, Executrix

100 Edgevale Road

Baltimore, MD 21210

 

Theresa L. Shade Wix, Esquire

Wix, Wenger, and Weidner

4705 Duke Street

Harrisburg, PA 17109-3041

 

ESTATE OF GLENN M. HITZ, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrixes and Administrator.

 

Jody Worm, Administratrix

PO Box 302

Richland, PA

 

Renee Via, Administratrix

409 W. Main Street

Palmyra, PA 17078

 

James Hitz, Administrator

10 C Greenfield Road

Lancaster, PA 17602

 

David R. Warner, Esquire

Buzgon Davis Law Offices

PO Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD E. BOWMAN, SR. late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David E. Bowman, Executor

John E. Feather, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF EUGENE D. MAVRETIC, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia Fidler, Executrix

1226 East Chestnut Street

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARY JANE MARINKOV, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Mary Jan Beebe, Executrix

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BETTY R. CONNER, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

George H. Conner, Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JAMES F. DOWLING, a/k/a JAMES FRANCIS DOWLING, late of Newmanstown, Mill Creek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Theresa I. Dowling, Executrix

Jill M. Scheidt, Esquire

c/o Masano Bradley

1100 Berkshire Blvd, Suite 201

Wyomissing, PA 19610

 

ESTATE OF EDWARD G. MAHEDY, JR., late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Leigh A. Evans, Administrator

908 Broad Street

Rahway, NJ 07065

 

Kenneth C. Sandoe, Esquire

Steiner and Sandoe

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF LAURA G. WEAVER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Melvin Weaver, Co-Executor

Paul Weaver, Co-Executor

 

Nevin D. Beiler, Esquire

Beiler Legal Services, PC

105 S. Hoover Ave.

New Holland, PA 17557

 

ESTATE OF KENNETH L. WOLFE, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Pamela Wolfe, Executor

Joseph Wolfe, Executor

Arbelyn Wolfe, Executor

PNC Bank, N.A., Executor

Attn: Heather Dorr, V.P.

1600 Market Street, 6th Floor

Philadelphia, PA 19103

 

Stanley Smith, Esquire

Barley Snyder

213 Market Street, 12th Floor

Harrisburg, PA 17101

 

SECOND PUBLICATION

 

ESTATE OF MARY ANN GOMEZ, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor

 

James M. Fick, Executor

George E. Christianson

411 Chestnut Street

Lebanon, PA  17042

 

ESTATE OF GEORGE K. SHAAK, SR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Adam S. Auchey, Executor

228 Jacklyn Drive

Cranberry Township, PA 16066

 

ESTATE OF KENNETH D. THOMPSON, JR., late of Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Kyle K. Thompson, Administrator

Anthony J. Fitzgibbons, Esquire

279 N. Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF EDWIN R. RODRIGUEZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jeanette Torres, Executrix

Estate of Edwin R. Rodriguez

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF STEVEN J. MARTEL, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

William F. Martel Jr., Administrator

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF WILLIAM M. GETTLE JR., late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Ruth S. Gettle, Executrix

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF LYDIA S. SOLOMON, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

  1. Jacqueline Miller, Executrix

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF THOMAS A. KRING, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Rebecca E. McCafferty Administratrix

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MARILYN L. HARTMAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Jeffrey L. Hartman, Co-Executor

Larry B. Hartman, Co-Executor

1140 Wilson Ave

Chambersburg, PA 17201

 

ESTATE OF JAMES A. SANDERS, late of Cleona Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Beau R. Sanders, Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF WILBUR M. SPANGLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Frederick Spangler, Executor

83 Valley Road

PO Box 673

Mount Gretna, PA 17064

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

PO Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GRACE V. SHUEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Douglas B. Shuey, Co-Executor

Clayton H. Shuey, Jr., Co-Executor

George E. Christianson, Esquire

411 Chestnut Street

Lebanon, PA  17042

 

ESTATE OF CARL L. HOFFMAN, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David G. Schwalm, Executor

Stephen R. Gibble, Esquire

Gibble Law Offices, P.C.

126 E. Main Street,

Lititz, PA 17543

 

THIRD PUBLICATION

 

ESTATE OF VIRGINIA L. YINGST, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Joan Y. Breidenstine, Executrix

Estate of Virginia L. Yingst

Reilly Wolfson Law Offices

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF FREDERICK RUEBMAN, JR., late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James Ruebman, Co-Executor

Keith Mearig, Co-Executor

John R. Gibbel, Esquire

PO Box 5349

Lancaster, PA 17606

 

ESTATE OF PHYLLIS A. STONER, late of the Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daniel Stoner, Sr., Executor

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MERLIN C. CRAUN late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Suzanne K. Rueppel, Executrix

George W. Porter, Esquire

909 E. Chocolate Avenue

Hershey, PA 17033

 

ESTATE OF ESTHER L. BUCK, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrices.

 

Carol A. Danz, Co-Executrix

Karen M. Meads, Co-Executrix

George W. Porter, Esquire

909 E. Chocolate Avenue

Hershey, PA 17033

 

ESTATE OF ROBERT P. FUNK, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ronald P. Funk, Executor

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Suite D

Lebanon, PA 17042

 

ESTATE OF HENRY M. BERGER, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Johan E. Berger, Co-Executor

Ross A. Berger, Co-Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042

 

ESTATE OF FREDERICK RUEBMAN, JR., late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

James Ruebman, Co-Executor

Keith Mearig, Co-Executor

John R. Gibbel, Esquire

PO Box 5349

Lancaster, PA 17606

 

THIRD PUBLICATION

 

ESTATE OF RIDA J. DEVITZ a/k/a RIDA JEANNETTE DEVITZ a/k/a JEANNETTE R. DEVITZ late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Hayes A. Clark, IV, Executor

Patrick M. Reb, Esquire

547 S. 10th Street

Lebanon, PA 17042

 

ESTATE OF KATHLEEN ANN MULHERN, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Dominic J. Mulhern

PO Box 336

Richland, PA 17087

 

Kenneth C. Sandoe, Esquire

36 West Main Avenue

Myerstown, PA 17067

 

INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

 

In Re:  Involuntary Termination of STEPHEN LLOYD LESKOWSKY JR

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA ORPHANS’ COURT DIVISION

  1. 2019-864

 

NOTICE OF HEARING

A Petition has been filed asking the Court to put an end to all rights you have to your child, Stephen Lloyd Leskowsky, Jr. The Court has set a hearing to consider ending your rights to your child. That hearing will be held on _July 23, 2020 AT 8:30 A.M. in the Chambers of the Honorable Judge SAMUEL A. KLINE located in the Lebanon County Municipal Building, 400 South Eighth Street, Lebanon, Pennsylvania, 17042. You are warned that even if you fail to appear at the scheduled hearing, the hearing will go on without you and your rights to your child may be ended by the Court without your being present.

YOU HAVE A RIGHT TO BE REPRESENTED AT THE HEARING BY A LAWYER. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

MidPenn Legal Services

513 Chestnut Street

Lebanon, Pennsylvania 17042 (717) 274-2834

 

David R. Warner, Jr., Esquire

BUZGON DAVIS LAW OFFICES

525 South Eighth Street

Lebanon, PA   17042

Phone: (717) 454-0808

warner@buzgondavis.com

Attorneys for Petitioner

 

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of Act 295 of 1982 (54 Pa. C.S. A. § 311), and its amendments, of the filing in the Office of the Department of State of the Commonwealth at Harrisburg, Pennsylvania, on April 16, 2020, of an Application for Registration of Fictitious Name. The name, style or designation under which said business is being or will be carried on or conducted is Brass Rail Beverages and the location of its principal place of business is 2828 Horseshoe Pike, Campbelltown, PA 19010. The name and address of the persons or entity owning or interested in said business is RYG, INC, 4525 Hill Church Road, Annville, PA 17003.

 

CHARLES A. RITCHIE, JR., Esquire

FEATHER AND FEATHER, P.C.

22 West Main Street

Annville, PA  17003

717-867-1200

 

JUDGES OPINION

 

Megan E. Pulaski v. Jeremy J. Pulaski

Unfortunately, the correspondence submitted on behalf of HUSBAND was neither complete nor responsive[1] to the specific directive of our February 15, 2019 Order.  With regard to the July 11, 2016 deposit of $38,001.67 into HUSBAND’s Northwest account, HUSBAND’s March 15, 2019 submission to the Court acknowledged a ”loan”[2] of $38,000.00 from Pulaski to HUSBAND for use as down payment money for the August, 2016 purchase of his Shanamantown Road home. However, the March 15, 2019 submission was silent as to the July 15, 2016 deposit of $30,001.23 into HUSBAND’s Northwest Account–money that HUSBAND had previously acknowledged also went towards his $63,000.00 total down payment.   Likewise, HUSBAND’s March 15, 2019 submission to this Court completely omitted any reference to a “loan” for $22,260.50 Pulaski had received from his mother for renovations to his Shanamantown Road property, despite the fact that the loan had initially been acknowledged by HUSBAND on the Expense and Obligation Statement admitted at the December 14, 2017 Hearing. (N.T. December 14, 2017 at 98; Exhibit 34) Concluding that HUSBAND had not complied with our Order of February 15, 2019, we entered an Order on April 17, 2019 scheduling a supplemental hearing for May 16, 2019 in order to receive testimony and evidence regarding the financial relationship between HUSBAND and PULASKI.

At that May 16, 2019 hearing, PULASKI testified that both of the July 2016 deposits into HUSBAND’s Northwest account, which totaled $68,000.00, came from the proceeds of the 30-day CD’s she had purchased with the  “payments” made by HUSBAND the month before. (N.T. May 16, 2019 at 26; Exhibit 61.) She indicated that the deposits represented a “short-term loan” to HUSBAND to enable him to have a down payment for his purchase of the Shanamantown Road property.  (N.T. May 16, 2019 at 4, 22, 24) Upon further questioning, PULASKI admitted that HUSBAND has not repaid any of the $68,000.00 in deposits “loaned” to him for his purchase of the Shanamantown Road residence, and there exists no documentation identifying the $68,000.00 as either a loan or a conditional gift. (N.T. May 16, 2019 at 24) With regard to the $22,260.50 she provided to HUSBAND for renovations to his Shanamantown Road home, PULASKI testified that the money was a loan being paid back through “in kind” services rendered to her by HUSBAND on her own renovation project.  (N.T. May 16, 2019 at 6-8)

HUSBAND testified at the May 16, 2019 hearing that the $22,260.50 loan he received from his mother for renovations was to be paid back through services. (N.T. May 16, 2019 at 32) When confronted with this contradiction to his December 14, 2017 testimony that he had already made cash payments on the renovation loan and his own handwritten notations regarding payments on the Income and Expense Statement admitted into evidence at that hearing—specifically the written notation indicating “pay as much when possible”––HUSBAND stated: “I’m an electrician. I’m not a lawyer.” (N.T. May 16, 2019 at 31)

With this factual record in mind, we turn to the resolution of WIFE’s Exceptions.

 

  1. SCOPE OF REVIEW

In reviewing a Special Master’s Report, we must give “fullest consideration” to the credibility findings of the Special Master, who was present to observe the demeanor of witnesses and hear their testimony.  Schuback v. Schuback, 603 A.2d 194, 196 (Pa. Super. 1992) (citing Dukmen v. Dukmen, 420 A.2d 667, 670 (Pa. Super. 1980)). A Special Master’s Report should not be lightly disregarded. Pasternak v. Pasternak, 204 A.2d 290, 291 (Pa. Super.1964). However, the Special Master’s Report is only advisory, and we are not bound by its conclusions. Id. at 291. We must consider all of the evidence de novo and make an independent determination of the fairness of the Special Master’s marital property distribution scheme. Id. See also Drake v. Drake, 725 A.2d 717, 727 (Pa. 1999).         That de novo review is further informed by the testimony and evidence we heard first-hand from both HUSBAND and PULASKI at a hearing before us on May 16, 2019, when we were able to make our own real-time determinations of credibility.

 

 

 

 

III.     DISCUSSION

The Court’s role in an equitable distribution dispute is to effectuate economic justice between the parties. See, e.g., Mercatell v. Mercatell, 854 A.2d 609, 612 (Pa. Super. 2004) It is through this lens that we have examined the complete factual record of the instant case and the Master’s Report and Recommendations based upon that record. While we have considered the record and the Report and Recommendations of the Special Master as a whole, our decision today is largely focused on a singular marital asset: the marital residence at 617 Horseshoe Trail Drive. Our decision today will adopt much of the Master’s Report and Recommendations. However, with respect to the Master’s treatment of the marital residence and the obligations flowing from that residence, we will depart, in some instances substantially, from the Recommendations of the Master.

 

  1. THE MASTER’S 55/45 DISTRIBUTION SCHEME IN FAVOR OF HUSBAND

 

Under Pennsylvania’s Divorce Code, “equitable” distribution does not necessarily mean “equal” distribution. Mercatell, 854 A.2d at 612. In distributing property, we are required to consider all of the factors set forth in the Divorce Code. See 23 Pa.C.S.A. §3502(a). However, we are not compelled to consider each factor equally. In Weng v.Feng, 888 A.2d 882 (Pa. Super. 2005), the Superior Court stated:

There is no simple formula by which to divide marital property. The method of distribution derives from the fact of the individual case. The list of factors [in the Code] serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the Court has flexibility of methods…

 

Id. at 887, quoting Fonzi v. Fonzi, 633 A.2d 634, 638 (Pa. Super. 1993).

Finding three of eleven factors in the Divorce Code weighed in favor of unequal distribution to HUSBAND and the remaining eight factors were neutral, the Master recommended a 55/45 distribution scheme in HUSBAND’s favor. Specifically, the Master found that factors (a)(3), (a)(5) and (a)(6) weighed in favor of unequal distribution and offered credible support for those conclusions. We do not disagree with the Master’s determination regarding those three factors or with the 55/45 percentage scheme he derived based upon that determination, with one important exception.  The percentages recommended by the Special Master are not appropriate for one particular marital asset– the residence at 617 Horseshoe Drive.

Subsection (a)(7) of §3502 requires consideration of the contribution of each party in the acquisition of the marital property. The Master found this factor to be neutral. We disagree, as the Master’s determination ignores HUSBAND’s significantly greater contribution to the acquisition of the marital residence. As we noted at the outset of this Opinion, the parties would never have been able to acquire this valuable marital asset apart from the largesse of PULASKI. It was HUSBAND—because he was the son of PULASKI–who was able to secure the $200,000.00 gift to augment the couple’s resources such that they could purchase a $525,000.00 marital home. We recognize that the balance of the purchase price was funded by a $325,000.00 mortgage to which both HUSBAND and WIFE contributed in subsequent years. WIFE is certainly entitled to some benefit from her contribution to those mortgage payments, as HUSBAND is from his. However, HUSBAND’s overall contribution to the acquisition of that specific marital asset—as the result of the financial contribution he secured through his mother–was significantly greater than that of WIFE. Economic justice requires we acknowledge that greater contribution.

The Divorce Code permits us to assign different percentages to different assets or different classes of assets. Section 3502(a) states, in pertinent part: “The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets.”  23 Pa.C.S.A. § 3502.  We will be utilizing that option in the instant case.

For the proceeds of the marital residence only, we will assign HUSBAND 75% of the proceeds of the marital residence and WIFE 25% of those proceeds.  We believe that percentage scheme accounts for both parties’ ongoing contributions to the mortgage of the property while giving proper weight to HUSBAND’s significant initial contribution. For the remainder of the marital assets, we will affirm and adopt the percentages recommended by the Special Master. HUSBAND shall be entitled to 55% of remainder of the marital assets, and WIFE will be entitled to 45% of the remainder of the marital assets.

  1. CREDITS

Having rejected the analytical paradigm used by the Special Master to address the parties’ marital residence, we must also– under our de novo review duty—evaluate the other aspects of the Special Master’s residence-related analysis. Specifically, we must also evaluate whether the credits recommended by the Special Master should be awarded.[3]

A spouse who has been excluded from the marital estate is presumed responsible for the upkeep of her interest in the marital home. Cerny v. Cerny, 656 A.2d 507, 556 (Pa. Super. 1995). Therefore the Court may, in its discretion, award a credit to a spouse who maintains full financial responsibility of the marital home. Id. at 556-57.

The record establishes that, upon separation in May of 2014, HUSBAND remained in the marital residence until it was sold in May of 2016, while WIFE resided elsewhere. Although WIFE was no longer living at the residence, the parties split the mortgage payment of $2,600.00 each month from the time of separation in May 2014 through October of 2015, after which WIFE was no longer able to pay her $1,300.00 share. From that point, until May 2016, HUSBAND alone made the $2,600.00 payments.

As a result, the Master determined that HUSBAND was entitled to an additional credit of $10,400.00, one-half of the mortgage payments made by HUSBAND alone from November of 2015 through May of 2016.  Because the Master failed to account for the rental value of property enjoyed exclusively by HUSBAND following separation, we will be rejecting the Special Master’s recommendation with respect to mortgage credit.

While a dispossessed spouse is still presumed responsible for the upkeep of her financial interest and responsibilities in the marital home, that spouse may also be entitled, within the court’s discretion, to a credit for the fair rental value of the marital home as compensation for the use of the premises by the spouse in possession. Id. See also Liciardello v. Liciardello, 570 A.2d 1062 (Pa. Super. 1990); Gee v. Gee, 460 A.2d 358 (Pa. Super. 1983) In the instant case, although WIFE retained an ownership interest in the marital residence, it was HUSBAND who enjoyed exclusive possession of the home from May of 2014 until May of 2016, while WIFE resided elsewhere.

The Special Master’s recommendation does not contemplate WIFE’s entitlement to rent during the time HUSBAND enjoyed exclusive possession.  This was an error.  HUSBAND enjoyed exclusive possession of the marital residence for 24 months.  Despite living elsewhere, WIFE still contributed funds amounting to half of the monthly mortgage payment of $2600.00 for the first 18 months of the couple’s 24-month separation, stopping those payments when she ran out of assets to continue making that contribution. (N.T. December 14, 2017 at 25)  Moreover, up until the sale of the marital residence, WIFE still contributed manual labor to its upkeep. (N.T. December 14, 2017 at 25)

Under the circumstances outlined above, we believe that WIFE would be entitled to rental value credit for the 24 months HUSBAND exclusively resided in the marital home. Unfortunately, no testimony was presented at any of the four evidentiary hearings held in this matter as to the fair market rental value of the property, such that this Court can precisely determine what that credit should be. Rather than open up this matter for a fifth evidentiary hearing in divorce proceedings that have already spanned five years, our intent is to treat the issue of outstanding mortgage credit to HUSBAND and rental value credit to WIFE as a “wash”.[4] Therefore, WIFE will not be entitled to rental credit from HUSBAND for the two years he resided in the marital residence without WIFE. HUSBAND will not be entitled to a mortgage credit from WIFE for the months of November 2017 to May 2018, when he was the exclusive payor of the outstanding mortgage obligation.

 

 

 

  1. THE MASTER’S DETERMINATION THAT THE PULASKI GIFT IS MARITAL DEBT

 

 

 

WIFE’s second and third exceptions challenge the Special Master’s determination that the Judgment obtained by PULASKI against the parties is marital debt. WIFE essentially argues that this debt is not really debt at all, but rather the depreciation[5] of an invested intervivos inheritance given to HUSBAND to purchase the marital home. The factual record established over four hearings in this case lends support to WIFE’s position. We note the following:

  • PULASKI gave identical gifts of $200,000.00 to both of her children when she redeemed her retirement funds. This fact is consistent with WIFE’s assertion that the gift made to HUSBAND and WIFE to purchase their marital home was an intervivos inheritance.

 

  • At the initial evidentiary hearing on December 14, 2017, HUSBAND’s description of the $200,000.00 gift was consistent with that of an intervivos inheritance. HUSBAND stated: “She [PULASKI] had given me and Megan and along with my brother and his wife, instead of dying and willing us money, she preferred basically to give us the money and watch us enjoy it….” (N.T. June 14, 2017 at 114)

 

  • The $38,000.00 and $30,000.00 “payments” HUSBAND made to PULASKI on the conditional gift “debt” in June of 2016 were surreptitiously funneled back to HUSBAND exactly one month later, from PULASKI, as two deposits totaling approximately $68,000.00 into his personal Northwest Checking Account. HUSBAND used those funds as down payment money to purchase his new home on Shanamantown Road.

 

  • Although PULASKI has described the $68,000.00 as a “short-term loan” to HUSBAND, she did not require HUSBAND to endorse loan documents memorializing such a loan, nor did she require HUSBAND to sign a conditional gift agreement for the deposits.

 

  • At no time since PULASKI provided HUSBAND with the $68,000.00 “short-term” loan in July of 2016 has HUSBAND made payments on that “loan.”[6]

 

  • HUSBAND did not list a loan for $68,000.00 on the Income and Expense Statement prepared for the Special Master in advance of the hearing on December 15, 2017.

 

  • Both HUSBAND and PULASKI have displayed a disappointing and frankly concerning lack of transparency regarding their financial interrelationship. It took four evidentiary hearings and two Orders entered by this Court to get what we can only hope is an accurate picture of the financial exchanges between HUSBAND and PULASKI since September of 2008.

 

  • The fourth evidentiary hearing was required because HUSBAND failed to comply with our Order of February 15, 2019, which had required HUSBAND, in very direct language, to submit a complete accounting of financial transactions between mother and son since September of 2008. Specifically, HUSBAND’s March 15, 2019 correspondence to this Court made no mention of the $30,000.00 deposit from PULASKI into his checking account on July 15, 2016. Likewise, HUSBAND’s March 15, 2019 correspondence to this Court made no mention of the $22,260.50 renovation loan from PULASKI to HUSBAND.

 

  • Even at the fourth and final evidentiary hearing before this Court on May 16, 2019 – necessitated by HUSBAND’s failure to comply with our Order of February 15, 2019 – both PULASKI and HUSBAND provided evasive and sometimes contradictory answers to direct questions regarding the exchange of funds between them. HUSBAND frequently indicated “I don’t recall.” (N.T. May 16, 2019 at 30, 33, 34) PULASKI did not answer questions directly and instead in numerous instances attempted to circumvent them. (N.T. May 16, 2019 at 5-7, 16-18, 24)

 

From the evidence and circumstances outlined above, it would be very easy for this Court to conclude that the accounting slights of hand performed by PULASKI and HUSBAND were intentionally meant to mask the true nature of PULASKI’s contribution of $200,000.00 to HUSBAND and WIFE for their purchase of the marital home on Horseshoe Trail Drive. Rather than a marital debt owed by both parties for which PULASKI expected payment, PULASKI’s $200,000.00 contribution was instead, as WIFE asserts, an intervivos inheritance to HUSBAND for which PULASKI never expected repayment. Indeed, based upon the almost immediate turnaround of payments from mother to son, the record suggests that PULASKI still doesn’t expect authentic repayment from HUSBAND, only from WIFE.[7]

 

Based upon these considerations, WIFE urges us to conclude that the conditional gift “obligations” to PULASKI should not be treated as marital debt, but rather as an intervivos inheritance invested in an asset that depreciated in value. Unfortunately, that path is not open to us. Nor was it open to the Special Master.

The doctrine of collateral estoppel requires that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.  Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475; Com. v. Winter, 471 A.2d 827, 829, 324 Pa.Super. 258, 262 (Pa.Super. 1984)     In the instant case, the Order entering judgment in the collateral gift litigation at CP-52-CV-01588-2016 looms large. In that Order, Judge Kline decreed that the monies still owed[8] by virtue of the Conditional Gift Agreement were marital debt. Even though Judge Kline was not afforded anything close to the factual insight we now possess on the issue, we are collaterally estopped from reaching a different conclusion with regard to an action involving HUSBAND and WIFE, who were both parties to that suit.   Constrained by the language of the Order of Judgment entered by Judge Kline declaring the obligations flowing from the Conditional Gift Agreement to be marital debt, we will affirm the Special Master’s conclusion in this case in that regard.

With the above being recognized,  our de novo review of the instant case permits us to allocate debt just as it permits us to allocate assets. It is this mechanism we will utilize to resolve the tension we feel between the limitations imposed upon us by the doctrine of collateral estoppel and the obligation we have to seek economic justice based upon the full record before us – a complete record to which Judge Kline did not have access to when he entered the Order at CP-52-CV-01588-2016. Thus, while we are constrained to treat the Judgment entered by Judge Kline as marital debt, we are free to allocate that debt as we believe is equitable. The Master divided that debt equally between the parties. We will not do so.

As suggested in our discussion regarding WIFE’s second exception, we do not believe that HUSBAND has, in actuality, made any “real” payments on the Judgment at CP-52-CV-01588-2016. While PULASKI testified that HUSBAND has paid $79,000.00 towards his total obligation of $105,088.50 flowing from that action, all of those payments—and then some—have been returned to him as “short-term loans” amounting to $90,260.50 ($68,000.00 + $22,260.50 = $90,260.00). There are no loan documents memorializing these “short term loans”. There is no conditional gift agreement protecting PULASKI’s interest in the assets secured with these loans. HUSBAND is to pay off the loans “when he can”, but neither he nor his mother can document any payments on either of those loans. Meanwhile, he has used money he had “just laying around the house” to gamble and purchase recreational land.

Since we are constrained to find that the Judgment at CP-52-CV-01588-2016 is marital debt, we find that the actions of PULASKI suggest that she has forgiven that debt with regard to HUSBAND. We further find that it would be grossly unfair to saddle WIFE with debt of $105,088.50–as the Master did when he allocated half of the gross amount of $210,177.00 to her– when HUSBAND appears to be free of the responsibility to pay anything, much less anything comparable, to his mother.  Moreover, our decision to impose the entire PULASKI debt to HUSBAND is also tied to our decision to allocate 75% of the value of the marital home to him.  Had WIFE been required to repay any of the PULASKI loan, we would have divided the proceeds of the house sale in a far different manner.

For these reasons, we will overrule the Master’s 50/50 allocation of the marital debt affiliated with the Judgment at CP-52-CV-01588-2016. We will instead allocate that debt exclusively to HUSBAND. It is up to PULASKI whether she seeks to collect on that debt or not.

 

  1. CONCLUSION

          We will be rejecting the equitable distribution scheme determined by the Special Master in three respects. All of our departures from the Recommendation of the Master relate to the marital residence at 617 Horseshoe Drive.

 

1) To properly account for HUSBAND’s greater contribution to the acquisition of the marital residence stemming from the $200,000.00 contribution of his mother to the original purchase price, we will employ a 75%-25% distribution scheme in favor of HUSBAND for that asset alone. For the remainder of the assets of the marital estate, we will affirm the Special Master’s distribution percentages of 55%-45% in favor of HUSBAND.

 

2) We will overrule the Master’s award of post-separation mortgage credit to HUSBAND. Since HUSBAND remained in the marital home while WIFE resided elsewhere for 24 months, WIFE is theoretically entitled to rental value credit. Because the Special Master did not allocate rental value credit to WIFE and the record does not provide us with the necessary factual predicate for determining such a value, we will consider HUSBAND’s entitlement to mortgage credit for the months he was the exclusive payer of the mortgage and WIFE’s entitlement to rental value credit for the 24 months HUSBAND exclusively resided in the marital residence to offset each other. HUSBAND will receive no mortgage credit for the period of November 2015 to May 2016. WIFE will receive no rental value credit for the period of May 2014 until May 2016.

 

3) We are collaterally estopped from determining that the $210,177.00 Judgement entered at CP-52-CV-01588-2016 and owed to PULASKI is anything other than marital debt. We affirm the Master’s determination in that regard. However, we will reject the Special Master’s 50%-50% allocation of that debt.  Instead, we will allocate 100% of that debt to HUSBAND.

 

We recognize that the net effect of what we have done today results in additional liquid assets flowing to HUSBAND. We believe that result is mandated by his greater contribution to the marital estate by virtue of the $200,000.00 conditional gift provided by his mother towards the purchase price of 617 Horseshoe Trail Drive. While affording HUSBAND the benefit of that greater contribution, however, we have also tasked him with the ongoing responsibility for the obligations flowing from it.

On an objective balance sheet, those additional assets would appear to be offset and arguably overshadowed by the large debt now assigned to HUSBAND. That objective balance sheet, though, must be viewed in the context of the record. If history is any guide—and we believe based upon our assessment of the credibility and demonstrated intention of the parties it is–HUSBAND will not be required to make any real payments on that debt.

As to WIFE, we believe the removal of the albatross of debt only she was going to be required to carry for the next ten years is a fair exchange for the additional 401(K) monies she must pay HUSBAND under the scheme we have developed. We believe this is the most equitable means to deal with the unusual circumstances in this case, particularly the tension between the conclusions we would like to draw from the record and the conclusions we are required to draw from the record based upon the doctrine of collateral estoppel.

We have examined all of the other recommendations of the Special Master and conducted our own independent examination of how our decision today affects the totality of the equitable distribution scheme for HUSBAND and WIFE.  Under all of the facts and circumstances presented, we conclude that this is a fair and equitable result, and one that comports with §3502 of the Pennsylvania Divorce Code.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] The supporting documentation also included unsolicited argument and a letter from PULASKI outlining her intent with regard to a $38,000.00 “loan” she made to her son.

[2] Curiously, while the attached statement from PULASKI characterized the $38,000.00 sum as a “loan,” the cover letter authored by HUSBAND’s counsel characterized the $38,000.00 sum as a “gift”.

[3] Neither party challenged the Master’s award of mortgage credit to HUSBAND, or the related issue of rental value credit to WIFE. However, as we have undertaken review of the Master’s proposed distribution of both the residence’s value and its associated debt and we will be deviating from those recommendations; we are permitted to evaluate, de novo, other considerations in the quest for economic justice. See Morschhauser v. Morschhauser, 516 A.2d 10 (Pa. Super. 1986)

[4] Offsetting rental credits and mortgage credits is a methodology routinely employed by both this Court and Pennsylvania appellate courts. See, e.g.,   Cerny v. Cerny, 656 A.2d 507, 556-57 (Pa. Super. 1995); Nuttall v. Nutall, 562 A.2d 814, 846 (Pa. Super. 1989); Middleton v. Middleton, 812 A.2d 1241 (Pa. Super. 2002) ; Trembach v. Trembach, 615 A.2d 33 (Pa. Super. 1992); Foehl v. Foehl, CP-38-CR-20674-2005); See also 15 Summ. Pa. Jur. 2d Family Law § 5:81 (2d ed.)

 

[5] PULASKI testified that the home was built for more than $500,000.00 in 2007. (N.T. May 16, 2019 at 15) HUSBAND and WIFE purchased the property from PULASKI in 2008 for a total purchase price of $525,000.00.  (Exhibit 22; N.T. December 14, 2017 at 46) The parties sold the property in May of 2016 for $395,000.00, after it had been on the market for approximately 18 months. (N.T. December 14, 2017 at 26)

[6]  PULASKI has attributed all payments made by HUSBAND, which by her calculation total $79,000.00, to the obligation flowing from the Conditional Gift Agreement, not to the $68,000.00 “short-term” down payment loan or to the $22,260.50 renovation loan. HUSBAND was unable to testify as to a total of payments made and was unclear as to what obligation those payments applied. (N.T. May 16, 2019 at 29-35)

[7] We recognize that PULASKI brought suit and obtained Judgment against both HUSBAND and WIFE. However, we also recognize that PULASKI brought that suit during the context of rancorous divorce proceedings between Pulaski’s son and WIFE. In that context, PULASKI’s suit against HUSBAND and WIFE may not be indicative of her true intent, particularly in light of the circumstances in which she originally gifted equal amounts to both sons and in her treatment of HUSBAND’s “payments” to her afterwards. Moreover, the furtive back and forth transactions and the subsequent lack of transparency of both HUSBAND and PULASKI about those transactions has certainly damaged, badly, the credibility of both HUSBAND and PULASKI with this Court.

[8] Accepting that HUSBAND had already made $72,500.00 in payments on the debt, Judge Kline determined the amount still owed to be $137,677.00. The record of that case does not indicate that Judge Kline was aware of the $68,000.00 in deposits PULASKI made into HUSBAND’s Northwest account one month after he made corresponding payments to PULASKI.

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