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January 5, 1959


Appeal, No. 96, March T., 1958, from order of Court of Common Pleas of Beaver County, Dec. T., 1955, No. 77, in case of Palmerino Consentino et al. v. Francesca Pecchio Vittoria, executrix of the estate of Carmine Pecchio. Order affirmed; reargument refused February 11, 1959.


Myron E. Rowley, with him James E. Rowley, Ralph E. Smith, and Rowley & Smith, for appellants.

Eugene A. Caputo, for appellee.

Before Jones, C. J., Bell, Musmanno, Jones and Cohen, JJ.

Author: Jones

[ 394 Pa. Page 539]


This is an appeal from the action of the court below in refusing to remove a compulsory non-suit entered against the appellants, Palmerino and Carmella Consentino, in an assumpsit action against Frances Vittoria, executrix of the estate of Carmine Pecchio, to recover for nursing and housekeeping services allegedly rendered by Mrs. Consentino to the decedent Pecchio during his lifetime.*fn1

[ 394 Pa. Page 540]

Carmine Pecchio, a native of Italy, resided in Ambridge, Pa., and had been acquainted with appellants during most of the time that he had been a resident of that community. On May 30, 1952, he went to live with appellants as a roomer, paying them $20 per month as room rent, which he continued to pay up until the time he moved to a new residence. At the time that he went to live with the appellants, Pecchio was unable to work, and was apparently partially crippled with arthritis and was suffering from some type of intestinal disorder. He continued to reside with appellants until March 6, 1954, when the appellee, his daughter, a recent arrival from Italy, took him to other quarters. Pecchio died on July 12, 1954, approximately four months after he had left appellants' home. Appellants' claim is for nursing and other services performed for Pecchio during the period of his residence with them. Appellants made no claim nor demand for payment during decedent's lifetime.

Appellants argue that the facts pleaded in their complaint and established at trial were sufficient to permit a recovery on a quantum meruit basis and that the court below erred in entering a non-suit. It is also contended that the court improperly refused to admit into evidence certain paragraphs of the complaint.

It is almost axiomatic that on an appeal from the refusal of the court below to take off a compulsory non-suit "we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to appellant."

[ 394 Pa. Page 541]

Est., 278 Pa. 381. Furthermore, appellant must overcome a presumption that any services rendered were paid for from time to time while they continued: Gross's Est., supra; Flaccus v. Wood, 260 Pa. 161. This presumption 'will gather strength with each succeeding year, and the evidence to overthrow it must of course be correspondingly increased': Gregory v. Com., 121 Pa. 611, 622; Gilbraith's Est., 270 Pa. 288, 291." In Braden Estate, supra, (p. 45), in discussing the quality of evidence required to sustain a claim of this nature, we said: "In respect to the contention that the furnishing of a room and of board and care to Lizzie Braden and her acceptance of the same during her lifetime created an implied contract, and that her estate should pay a reasonable amount by way of compensation, and that the complainants should be permitted to recover on a quantum meruit basis, what this Court held in Gilbraith's Estate, 270 Pa. 288, 113 A. 361, in negativing such a claim is apposite here. In that case we said, quoting from the syllabus: 'In claims for board and nursing, the presumption is that the services were actually paid for periodically, exactly as is the rule in the case of servants' wages; and this presumption cannot be overcome by vague and uncertain testimony. Claims against a dead man's estate, which might have been made against him while living, are always the subject of just suspicion, and require clear proof before they will be allowed.... Where a claim is made for board and nursing covering a period of years, and it is not shown to have been made while the services were being rendered, nor during a later period when decedent was living elsewhere, nor until after the death of the alleged debtor, the burden of proof to overcome the presumption is greatly increased. The presumption is not overcome by evidence of loose declarations made by decedent during his lifetime... No recovery can

[ 394 Pa. Page 543]

    said, 'She has been so kind to me I will see she is taken care of.' Nothing more conclusive appears in the case.... The testimony was not nearly sufficient to support the claim. It was indefinite and unsatisfactory. In fact, it fell far short of proving a single essential fact."

Appellants further urge that the court below erred in refusing to admit into evidence certain paragraphs of the complaint which alleged the performance of services by the claimant and non-payment by the decedent, and were not initially denied by the appellee. Assuming that appellants are technically correct in this contention, we do not believe that the admissions would have materially altered the outcome of the suit. Counsel for appellee explained that the averments had not been denied through inadvertence, and sought to amend the answer at trial. We can see no valid reason for determining the rights of the parties to the present controversy on a technicality of pleading when appellants have been unable to substantiate their claim with clear and convincing testimony. The statement of this Court in Stewart v. Hooks, 372 Pa. 542, 545, 94 A.2d 756, is most appropriate in dismissing this contention. "Furthermore, any common sense appraisal of the defendants' position as revealed by all the pleadings leaves no doubt that it was nothing more than an oversight of counsel which occasioned the admission in the original answer. It would be legal sophistry, reminiscent of an age long past, to determine the rights of litigants on such technicalities of pleading." (Emphasis supplied)*fn6


Order affirmed.

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