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EDMUND J. BROKANS v. JOSEPH L. MELNICK (12/20/89)

filed: December 20, 1989.

EDMUND J. BROKANS, ADMINISTRATOR OF THE ESTATE OF BABY GIRL SMITH, DECEASED, APPELLANT,
v.
JOSEPH L. MELNICK, M.D. WEST PARK HOSPITAL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division at No. 1877 September 1986.

COUNSEL

Gerry Woods, Philadelphia, for appellant.

James M. Penny, Jr., Philadelphia, for Melnick, appellee.

Robert E. Hall, Philadelphia, for West Park Hosp., appellee.

McEwen, Popovich and Melinson, JJ. Melinson, J., concurs in the result.

Author: Popovich

[ 391 Pa. Super. Page 23]

Herein, our Court is presented with the opportunity to determine whether a total stranger to a decedent and his or her heirs can qualify as a "fit person" who is entitled to be granted letters of administration pursuant to 20 Pa.C.S.A. ยง 3155(b)(5). After lengthy consideration of the facts and relevant case law, we are convinced that we are entirely within our authority in holding that the Register of Wills' act of granting letters of administration to appellant was void ab initio, and, consequently, Administrator Edmund J. Brokans lacked the capacity to sue on behalf of the estate.*fn1

The facts of this case merit in depth recitation. In West Park Hospital, on September 12, 1984, Dr. Joseph L. Melnick, M.D. performed an elective abortion upon Tina Marie

[ 391 Pa. Super. Page 24]

Smith who was then thirteen years of age. Attorney Brokans alleges that, at the time the abortion was performed, Tina Marie was within the third trimester of her pregnancy.*fn2 Appellant further contends that the fetus, known as Baby Girl Smith, was delivered viable.*fn3 In fact, he contends that the fetus survived outside the womb for approximately one and one-half hours after the abortion and that Dr. Melnick and the Hospital's staff failed to provide Baby Girl Smith with proper medical care.

Judged from the investigative log of the Philadelphia Medical Examiner, these facts gave rise to a cause celebre in the Philadelphia area. The log is replete with requests from strangers who wanted to be responsible for the burial or cremation of the body, including a request from appellant on September 21, 1984.*fn4

On September 11, 1986, one day shy of the second anniversary of Baby Girl Smith's death, Attorney Brokans designated himself as administrator of the baby's estate and instituted this action by writ of summons. On the same day, Attorney Brokans petitioned the Register of Wills of Philadelphia County for the grant of letters of administration for the estate of Baby Girl Smith. In his petition for letters of administration, Attorney Brokans stated:

Petitioner after a proper search has ascertained that decedent left no will and was survived by the following spouse and/or heir(s): None are known, except for the mother, an unidentified juvenile whose interests are adverse to those of the estate and who renounced any claim to the decedent's body at the time of burial. Two years have passed and no other person has applied to administer the estate. Petitioner is a member of the Pa. Bar

[ 391 Pa. Super. Page 25]

(Atty ID # 34373), is a fit person to administer the estate, has no interest adverse to the estate, seeks no compensation and seeks appointment in order to preserve and pursue any claims by the estate before the statute of limitations expires. A Death Certificate and Medical Examiner's summary have been requested and will be filed when received. As evidence of death, attached are copies of news clippings.

Based on the foregoing, letters of administration were granted to Attorney Brokans on September 12, 1986. On July 29 and July 30, 1989, ten months after being granted letters of administration, Attorney Brokans, pursuant to Pa.R.C.P. 2205, notified Willie Mae Smith, the mother and legal guardian of Tina Marie, that wrongful death and survival actions had been filed on behalf of her daughter and the father of Baby Girl Smith. The record does not indicate whether notice was ever given to the named father, Anthony Troy. To ...


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