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filed: October 1, 1982.


No. 257 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Orphans Court Division, of Montgomery County at No. 81-664.


William A. Harvey, Philadelphia, for appellant.

John J. Speese, Philadelphia, for participating parties.

Brosky, Popovich and Montgomery, JJ.

Author: Popovich

[ 305 Pa. Super. Page 88]

This is an appeal from an order of the court below which granted a petition for counsel fees in the amount of $900.00 to appellee, Donald Copeland.*fn1 We affirm.

The facts, as summarized by the court below, are as follows:

The underlying cause of action is an appeal by appellant, Adrienne Wood, to the Court of Common Pleas of Philadelphia County from probate by the Register of Wills of a writing purported to be her mother's will. Appellee, Donald Copeland, was the scrivener of that will. In that appeal, which was filed with the Orphans' Court Division on February 25, 1980, Adrienne Wood named Copeland as a party. She alleged that

". . . Maggie Kephart introduced decedent to attorney Donald Copeland . . . and by and through Donald Copeland, did exert mental pressure and undue influence upon decedent to persuade her to execute said writing . . . ." Par. 5(b), Appeal.

Adrienne Wood also alleged that

"[Appellant] believes and expects to be able to prove that the said paper writing was the product of fraud on the part of Maggie Kephart and the scrivener Donald Copeland, acting together . . . ." Par. 6, Appeal.

Preliminary objections to the appeal were filed alleging, inter alia, that the appeal was insufficiently specific. That objection was sustained; however appellant was granted leave to file, within 90 days, an amended appeal. The extension was granted in order to permit Adrienne Wood to avail herself of discovery in aid of the pleading. Thereafter,

[ 305 Pa. Super. Page 89]

    on August 27, 1980, appellant's attorney took Attorney Copeland's deposition, and on September 9, 1980, appellant filed her "Amended Petition on Appeal from Probate." The amended petition did not name Attorney Copeland as a party, and the foregoing references to him quoted from the initial appeal were deleted from the amended appeal. On October 10, 1980, Copeland was formally "dropped from the record as a party respondent." His petition for counsel fees was filed November 3, 1980, and the matter was heard on January 6, 1981.

At the hearing, appellee testified that the allegations of wrongdoing and impropriety leveled against him by the first appeal from probate were totally without foundation. He stated that he had no interest in the proceedings, being neither a beneficiary of the estate, relative of the decedent, nor an executor. He had no understanding with any heirs about the estate. He further testified that his counsel had expended a total of 12.45 hours in representing him as a party to the proceedings. No testimony was offered by or on behalf of the appellant.

The court entered an order awarding appellee counsel fees, and the instant appeal followed.

Appellant raises the following issues: (1) whether the trial court erred as a matter of law in holding that appellee was entitled to an award of attorney's fees under Section 2503 of the Judicial Code, 42 Pa.C.S.A. § 2503, where appellee failed to present any evidence to show that appellant's conduct in commencing the action was arbitrary, vexatious, or in bad faith; and (2) whether the trial court erred as a matter of law in holding that appellant's answer to paragraph 8 of appellee's petition constituted an admission under Rule 1029 of the Rules of Civil Procedure. For the reasons herein stated, we affirm the trial court's order.

To begin with, appellant's claim concerning sufficiency of the evidence requires an inquiry into whether appellee sustained his burden of proving by a preponderance of the evidence that the conduct of appellant in commencing the

[ 305 Pa. Super. Page 90]

    lawsuit was arbitrary, vexatious or in bad faith. When examining appellant's contention, we must remember the following guidelines:

"when a litigant 'has the burden of proof' it means that he has made a claim which he cannot expect to have accepted until he offers proof sufficient to support it; and the least degree of proof any claimant can offer in order to obtain persuasion is proof which fairly outweighs the probative value of any proof offered against the claim. If the evidence does not fairly preponderate in favor of his claim he has failed to carry his burden of proof. Since proof by a 'preponderance of the evidence' is the lowest degree of proof recognized in the administration of justice, the evidence the burdened party offers does not become proof until it preponderates*fn1a in evidentiary weight against the opposing evidence.

Se-Ling Hosiery v. Margulies, 364 Pa. 45, 48-49, 70 A.2d 854, 856 (1950). (emphasis in original.)

In this connection, we also have said that the burden of proof may shift during the course of the trial in the following manner:

"'If he [the plaintiff] makes a prima facie case, and nothing is done by the other side to answer it "the plaintiff wins."' * * * there are points at which the onus of proof shifts, * * * it is not a burden which rests forever on the person on whim it is first cast, but as soon as he, in his turn, finds evidence which, prima facie, rebuts the evidence against which he is contending, the burden shifts until again there is evidence which satisfies the demand. Now, that being so, the question as to onus of proof is only

[ 305 Pa. Super. Page 91]

    a rule for deciding on whom the obligation rests of going further, if he wishes to win.'" Arco Metalscraft Co. v. Shaw, 364 Pa. 39, 44, 70 A.2d 850, 853 (1950) (Emphasis added).

With this framework in mind, the applicable statute, 42 Pa.C.S.A. § 2503, set forth below, which formed the basis of appellee's petition for counsel fees must be scrutinized:

"§ 2503. Right of participants to receive counsel fees

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

(1) The holder of bonds of a private corporation who successfully recovers due and unpaid interest, the liability for the payment of which was denied by the corporation.

(2) A garnishee who enters an appearance in a matter which is discontinued prior to answer filed.

(3) A garnishee who is found to have in his possession or control no indebtedness due to or other property of the debtor except such, if any, as has been admitted by answer filed.

(4) A possessor of property claimed by two or more other persons, if the possessor interpleads the rival claimants, disclaims all interest in the property and ...

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