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decided: October 15, 1987.


Appeal from the Order of the Superior Court Dated February 20, 1986, at No. 118 Harrisburg, 1985, Affirming the Order of the Court of Common Pleas of Lycoming County, Dated January 15, 1985, at No. 83-20479, 351 Pa. Superior Ct. 139, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Flaherty, J., files a dissenting opinion in which Zappala, J., joins.

Author: Papadakos

[ 516 Pa. Page 430]


This is the appeal of Walter L. Drumheller, Franklin W. Drumheller and Betty Jean Armbruster, Executors of the Estate of Elizabeth P. Rothman, Deceased (Appellants) from the opinion and order of the Superior Court affirming an order of the Court of Common Pleas of Lycoming County which dismissed an action in divorce and request for equitable distribution which had been instituted by Appellant's decedent, Elizabeth P. Rothman, against Sidney J. Rothman, now also deceased, and represented by David Marcello, Administrator of the Estate of Sidney J. Rothman, deceased, (Appellee).

The facts are not in dispute and can be summarized as follows. Sidney J. Rothman and Elizabeth P. Rothman were married on February 13, 1969. On April 28, 1983, Mrs. Rothman instituted an action in divorce against her husband seeking, in addition to a decree in divorce, an equitable distribution of marital property. The complaint also contained a request for counsel fees. Mr. Rothman filed a timely answer and interposed a counterclaim. During the course of discovery proceedings, various orders were entered by the Court of Common Pleas of Lycoming County including an order directing Mr. Rothman to make support payments of $2,000.00 per month and to advance to Mrs. Rothman the sum of $10,000.00 on account of her distributive share to which she would be entitled following the issuance of a decree in divorce.

[ 516 Pa. Page 431]

The Honorable Robert J. Wollet, Judge of the Court of Common Pleas of Lycoming County, also directed that Mrs. Rothman have exclusive use of the parties' condominium in Pompano Beach, Florida, from February 15, 1984, until April 15, 1984. Shortly after Mrs. Rothman took possession of the condominium, she was shot and killed by her husband, who had been waiting for her inside the condominium. After killing his wife, Mr. Rothman turned the gun on himself and took his own life.

Following these tragic events, the children of Mrs. Rothman*fn1 (Appellants) were appointed Executors under her Last Will and Testament and were substituted as parties to the divorce action. David Marcello (Appellee) was appointed Administrator of the estate of Mr. Rothman and was substituted as the defendant in the divorce action.

Appellee filed a motion to dismiss the divorce action and all ancillary claims since the original parties to the action were dead. The trial court granted the motion on January 15, 1985, and Appellants timely filed an appeal to the Superior Court. That court affirmed the trial court's order dismissing the causes of action for divorce and equitable distribution, without prejudice to the right of Appellant's estate to pursue a claim for counsel fees. Drumheller v. Marcello, 351 Pa. Superior Ct. 139, 505 A.2d 305 (1986).

We granted Appellants' Petition for Allowance of Appeal to examine whether an action for divorce and equitable distribution abates where a wife is killed at the hands of her husband.

An action in divorce is personal to the parties and, upon the death of either party, the action necessarily dies. See, Reese v. Reese, 351 Pa. Superior Ct. 521, 506 A.2d 471 (1986); Haviland v. Haviland, 333 Pa. Superior Ct. 162, 481 A.2d 1355 (1984). We recently reiterated this in Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986), where we noted that:

[ 516 Pa. Page 432]

The primary object of a suit for divorce is personal, that is, to change the relation of the parties to each other. In the case of the death of either party that object can no longer be achieved, the marital relation having been terminated by death. The divorce action also terminates since the court can no longer decree a divorce between the parties.

Clingerman, 513 Pa. at 189, 519 A.2d at 384.

Once a decree in divorce is granted, however, and thereafter one of the parties dies, the court can continue with the equitable distribution of the marital property. See, Pastuszek v. Pastuszek, 346 Pa. Superior Ct. 416, 499 A.2d 1069 (1985).

Statutorily, equitable distribution occurs only upon the issuance of a divorce decree. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982). See also, Dech v. Dech, 342 Pa. Superior Ct. 17, 492 A.2d 41 (1985); 23 P.S. § 401.

Appellants agree that the general principles as to the abatement of divorce actions are as we have recited but strenuously argue that their application to situations where one spouse kills another must be different because of various provisions of the Slayer's Act.*fn2 They argue that the Act insures that slayers shall not in any way acquire any property or any benefit as a result of the death of their victim and in this case, by slaying Mrs. Rothman, Mr. Rothman acquired a benefit, i.e., the avoidance of equitable distribution.

The Slayer's Act provides at 20 Pa. C.S. § 8802, in pertinent part, that:

No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent . . .

In our case In re: Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965), we had occasion to construe this same language which was then part ...

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