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filed: June 22, 1984.


No. 2192 Philadelphia, 1983, Appeal from Judgment entered on the Order of the Court of Common Pleas, Orphans' Court Division, of Clinton County, No. 132 of 1979.


Melvin E. Newcomer, Lancaster, for appellant.

Robert A. Longo, Lancaster, for participating party.

Rowley, Hester and Roberts, JJ.

Author: Rowley

[ 330 Pa. Super. Page 260]

Kenneth Cummings (appellant), who is one of the brothers of decedent, appeals from the judgment entered in favor of Patricia Schwartz Cummings (Patricia), appellee, for a statutory share of the decedent's estate as his surviving common-law wife. Appellant is named both as a beneficiary and the executor of the estate in decedent's last will and testament. The only question before us is whether the trial court erred in determining that a common-law marriage existed between appellee and the decedent. Upon a thorough review of the record in this case, we reverse.

Rodney J. Cummings died testate on June 24, 1979. His will, dated February 5, 1973, named his brother, Kenneth Cummings, as Executor and left his estate to his three brothers, including appellant, in equal shares. Patricia filed an election to take a statutory share of decedent's estate under the Probate, Estate and Fiduciaries Code, 20 Pa.C.S.A. ยง 2203, on September 17, 1979. The appellant then filed a petition to vacate the spousal election and a hearing was held on April 9, 1981 before the Court of Common Pleas in Clinton County, at which time witnesses testified for both parties.

The factual findings of the trial court are undisputed on appeal. Patricia met Rodney Cummings in 1972 on a blind date during the time that both parties resided in Lancaster County, Pennsylvania. The parties continued dating until December 1974, when Patricia moved into decedent's residence in Manheim, Lancaster County, along with her two sons. The Court specifically found that the parties were not married to each other when Patricia moved into Rodney's residence.*fn1 Furthermore, the court found that they did not hold themselves out as husband and wife during the time they lived in Manheim. On August 9 or 10, 1975, Patricia and Rodney dined out at the Mansion House Restaurant. In the course of their conversation, Rodney remarked that it had been three years since they had met,

[ 330 Pa. Super. Page 261]

    that he was happy, and that he felt like he was a married man. He then gave Patricia a diamond ring, which she accepted and he told her to wear it whenever she left the house.

Decedent was employed with Pennsylvania Power and Light Company (PP & L) and worked primarily in Clinton County, although he returned to his home in Manheim on weekends. In 1977, decedent purchased a home in Renovo, Clinton County, titled in his own name. He telephoned Patricia and stated: "I bought you a home." Patricia voiced her resistance to the idea of moving to Clinton County but Rodney insisted: "You are my wife. You are going to move." Thereafter, Patricia moved to Rodney's newly acquired home in Renovo with her two sons and they resided there until Rodney's death. While they lived in Renovo, Rodney introduced Patricia as his wife in conversations with George R. Schroat, an employee of PP & L, William W. Hepner, a neighbor for whom Rodney did yard work, and Paul F. Maxwell, the football coach at the school that Patricia's sons attended. Two of decedent's co-workers at PP & L, Leroy Hack and Jonathan Rishel, were aware that Rodney and Patricia were not legally married. However, both workers stated that Rodney often referred to Patricia as "my wife" or "my woman" and that he referred to Patricia's sons as "my boys". Mr. Rishel encouraged Rodney to solemnize the marriage but Rodney's response was: "I don't need a piece of paper to prove I'm married. I am married."

However, Rodney told his brother Kenneth Cummings, on numerous occasions, that he was not married to Patricia. The last time he told Kenneth that he was not married was on June 1, 1979, when he returned to Lancaster County for a relative's funeral. On the day of the funeral, Rodney also told his father Richard Cummings, as he had on other occasions, that he was not married to Patricia and that he did not intend to marry her. Patricia received benefits ...

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