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ESTATE PEARL M. CORNELL (12/12/84)

filed: December 12, 1984.

IN RE ESTATE OF PEARL M. CORNELL, DECEASED. APPEAL OF FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BUCKS COUNTY, APPELLANT


No. 3478 Philadelphia, 1983, Appeal from the Order Entered on November 29, 1983 in the Court of Common Pleas of Bucks County, Orphans' Division, No. 50615

COUNSEL

James A. Downey, III, Bristol, for appellant.

Paul R. Beckert, Jr., Fairless Hills, for appellee.

Olszewski, Popovich and Cercone, JJ.

Author: Cercone

[ 336 Pa. Super. Page 596]

First Federal Savings and Loan Association of Bucks County (First Federal) filed an original action in assumpsit*fn1 and trespass in the Civil Division of the Court of Common Pleas against Jessie Roger Erwin, executor of the estate of Pearl M. Cornell. Preliminary objections to the assumpsit count of the complaint were sustained and, by agreement of the parties, the matter was transferred to the Orphans' Court Division. There an account was filed on behalf of the estate of Pearl M. Cornell. At the audit, First Federal filed a claim in the amount of $10,528.40, which it claimed was

[ 336 Pa. Super. Page 597]

    paid in error to the executor on behalf of the estate. After a hearing, the court entered an adjudication concluding that First Federal had not met its burden of establishing that the property in question was not that of the decedent. We disagree with this conclusion of the Orphans' Court, and because we feel it was error to dismiss the assumpsit claims, we reverse and remand for a hearing on appellant's claim for restitution. We affirm the court's adjudication that a conversion was not substantiated.

The findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. Brenna v. Nationwide Insurance Co., 294 Pa. Superior Ct. 564, 440 A.2d 609 (1982). "Abuse of discretion" is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of prejudice, partiality, bias, or ill-will, as shown by the evidence or the record, discretion is abused. Straub v. Tyahla, 274 Pa. Superior Ct. 411, 418 A.2d 472 (1980).

By electing to attempt to settle the instant matter in the Orphans' Court rather than in the Civil Division, the parties also elected a heavier burden of proof. Fashioned as a claim against a decedent's estate, First Federal undertook a burden of clear and convincing evidence, Secary Estate, 407 Pa. 162, 180 A.2d 572 (1962), to prove that the estate was wrongfully, albeit inadvertently, paid $10,528.43.

In reviewing a claim regarding sufficiency of evidence, the appellate court must view the evidence in the light most favorable to the verdict winner. Rubinstein v. J.E. Kunkle Co., 244 Pa. Superior Ct. 474, 368 A.2d 819 (1976). The evidence presented at the hearing below established that the decedent, an elderly woman, opened an account at First Federal on June 29, 1978, in the amount of $10,000. She was issued a certificate bearing the number 3-9-3, with the last digit, 3, representing the actual account number. The saving certificate was numbered 1893. Mr.

[ 336 Pa. Super. Page 598]

Louis Persichetti, the bank manager, testified that a few months after she opened her account, it came to his attention that another depositor, upon opening her own $10,000 account, had mistakenly received the same account number as the decedent, i.e., number 3.*fn2 He testified that he telephoned Ms. Cornell and notified her that she would be receiving a replacement certificate ...


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