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JOHN K. BERRY v. CORTLAND ORVEL TITUS (10/04/85)

filed: October 4, 1985.

JOHN K. BERRY, SR., ADMINISTRATOR OF THE ESTATE OF JOHN K. BERRY, JR., DECEASED AND JOHN K. BERRY, SR., IN HIS OWN RIGHT,
v.
CORTLAND ORVEL TITUS, JR. AND WEST CALN TOWNSHIP. APPEAL OF MARY C. BERRY



Appeal from the Order entered in the Court of Common Pleas of Delaware County, Orphan Division, No. 243-84

COUNSEL

Frank J. Marcone, Media, for appellant.

M. Cherry Sharon, Media, for appellee.

Wickersham, Brosky and Tamilia, JJ.

Author: Tamilia

[ 346 Pa. Super. Page 378]

This is an appeal from the order of the Court of Common Pleas of Delaware County Orphan's Court Division, dismissing appellant's exceptions to an order that denied her proceeds from a distribution made pursuant to the Wrongful Death Statute, Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S.A. § 8301. We reverse and order that appellant be awarded her proportional share of the proceeds pursuant to 20 Pa.C.S.A. § 2103.

Appellant, Mary Berry, is the mother of the decedent, John Berry, Jr., who was killed on June 29, 1980, when the motorcycle he was driving collided with a car. John Jr. was 15 years old at the time of his death. Appellee, John K. Berry, Sr. is the father of the decedent. At the time of John Jr.'s death, appellant and appellee had been divorced for sixteen months following 18 years of marriage. Appellant had left the marital home in the winter of 1978 and the parties divorced in February of 1979. The parties' children, John Jr. and Jacqueline, remained in the marital home with appellee.

On March 31, 1981, appellee, as administrator of his son's estate, commenced a wrongful death and survival action.*fn1 The actions were settled for the amount of $80,000.00. The net recovery, after deduction of attorney's fees and costs was $51,446.25. Of this net amount, $12,861.56 was apportioned to the survival action and $38,584.60 was apportioned to the wrongful death action. Appellee conceded that appellant shares in the portion allocated to the survival action. Appellee, however, contested any distribution of the proceeds from the wrongful death action to appellant, arguing that she had severed her ties with her son following her

[ 346 Pa. Super. Page 379]

    separation and divorce from appellee, and had suffered no pecuniary loss as a result of her son's untimely death. Following a hearing, the lower court found as fact that only appellee supported John, Jr. following the separation and divorce, that appellant never requested visitation rights throughout the 16-month period between the divorce and her son's death, and that appellant saw her son "only sporadically and not at all during the 6-month period immediately preceding her son's death." The court concluded as a matter of law that appellant abandoned her parental connection with the decedent and suffered no pecuniary loss as a result of his untimely death. Thus, the court concluded that appellant was not entitled to share in the wrongful death action proceeds.

In the Estate of Gilbert, 342 Pa. Super. 82, 87, 492 A.2d 401, 404 (1985) we stated:

The findings of a judge of the orphans' court division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. In re Estate of Cornell, [336] Pa. Super. [594], [596], 486 A.2d 424, 425 (1984).

This rule is particularly applicable "to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony." Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans' Court's findings, our task is to ensure that the record is free from legal error and to determine if the Orphan's Court's findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). ...


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