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SHERRI LYNN FIUMARA AND WILLIAM JAMES FIUMARA BY THEIR PARENT AND NATURAL GUARDIAN CAROL FIUMARA v. LOUIS H. FIUMARA AND CAROLYN C. KELLY (03/13/81)

filed: March 13, 1981.

SHERRI LYNN FIUMARA AND WILLIAM JAMES FIUMARA BY THEIR PARENT AND NATURAL GUARDIAN CAROL FIUMARA
v.
LOUIS H. FIUMARA AND CAROLYN C. KELLY, APPELLANTS AT NO. 96. APPEAL OF IRON WORKERS PENSION PLAN OF WESTERN PENNSYLVANIA, AT NO. 73



Nos. 73 and 96 April Term, 1979, Appeal from the Decree in the Court of Common Pleas of Allegheny County, Civil Division, No. 3719 Equity, July Term, 1974.

COUNSEL

Louis J. Krzemien, Pittsburgh, for Iron Workers, appellant (at No. 73) and for appellee (at No. 96).

John W. Jordan, IV, Pittsburgh, for Fiumara, appellees.

Lawrence D. Funsten, Pittsburgh, for Louis Fiumara and Kelly, appellants (at No. 96) and for appellees (at No. 73).

Price, Hester and Cavanaugh, JJ.

Author: Price

[ 285 Pa. Super. Page 343]

This appeal arises out of an action in equity brought to determine the interests in a claim dispute. Appellants,

[ 285 Pa. Super. Page 344]

Carolyn Kelly and Louis Fiumara, contest the decree ordering them to disgorge funds they received from appellant Iron Workers Pension Plan of Western Pennsylvania (hereinafter Pension Plan). Pension Plan appeals from the decree holding it liable to appellees for funds paid subsequent to receipt of notification of appellees adverse claim. On February 5, 1979, appellees filed a motion to dismiss Pension Plan's appeal, which motion was denied on November 14, 1979. Pension Plan claims that the court erred in its determination as to their liability. Kelly and Fiumara contend that the adjudication is insufficient in law and fact. Finding both claims to be without merit, we affirm the final decree.

The pertinent facts are as follows.*fn1 Appellees are the only children of John J. Fiumara, deceased. Decedent was a member of Pension Plan and, as such, was entitled to participate in that plan's welfare and pension benefits. On January 5, 1970, decedent changed the beneficiary designation from his estranged wife to his two minor children, the appellees. The daughter was 12 years of age, the son 10 years of age, at the time of his death.

In April or May of 1972, John Fiumara's ex-wife and eight brothers and sisters were told that he had terminal cancer. Thereafter, Pension Plan received a change of beneficiary form dated May 4, 1972, purporting to change the beneficiary to decedent's brother, appellant Louis H. Fiumara. Appellant Fiumara subsequently admitted signing decedent's name to the form while decedent was in surgery and, accordingly, the trial court found the form to be a forgery.

The decedent was hospitalized from December 26, 1972 through January 13, 1973. Following this date, decedent was unable to care for himself and thus moved in with Carolyn Kelly, a sister, with whom he had previously been ...


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