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Gerow v. Gerow

December 4, 2008

JOHN Y. GEROW, III, APPELLANT
v.
CLARINDA M. GEROW, APPELLEE



Appeal from the Order entered December 6, 2007, in the Court Of Common Pleas of Berks County, Civil No(s). 01-12822 # 1.

The opinion of the court was delivered by: Allen, J.

BEFORE: LALLY-GREEN, GANTMAN and ALLEN, JJ.

OPINION

¶ 1 Amy Hutchinson ("Appellant") as executrix of the estate of John Y. Gerow, III ("Husband") appeals the trial court's December 6, 2007 order denying Appellant's motion to substitute personal representative and determine economic rights pursuant to the Divorce Code at 23 Pa.C.S.A. § 3323(d)(1).

¶ 2 Appellant filed this appeal on January 7, 2008. On January 24, 2008, the trial court directed Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a concise statement on February 1, 2008.

¶ 3 Appellant raises the following questions on appeal:

DID THE LOWER COURT ERR IN DETERMINING THE COURT HAS NO AUTHORITY TO HOLD A HEARING AFTER THE DEATH OF A PARTY TO DETERMINE IF GROUNDS FOR DIVORCE EXIST UNDER 23 CONS. STAT. ANN. § 3323(g)(1) AND 23 CONS. STAT. ANN. § 3301(A)?

DID THE LOWER COURT ERR IN DETERMINING TESTMONY TO DETERMINE IF GROUNDS FOR DIVORCE EXIST FOLLOWING THE DEATH OF A PARTY WOULD BE BARRED UNDER THE DEAD MAN'S STATUTE? (sic)

Appellant's Brief at 3.

¶ 4 On December 14, 2001, Husband filed a divorce complaint in which he alleged, inter alia, that the marriage was irretrievably broken pursuant to the no fault provisions of 23 Pa.C.S.A. §§ 3301(c) and (d), and on the fault grounds that he had suffered indignities pursuant to 23 Pa.C.S.A. § 3301(a)(6). The trial court detailed the procedural history that followed:

The Complaint was served on December 26, 2001 by registered mail, return receipt requested. Counsel entered an appearance on behalf of Clarinda Gerow, (Wife), but did not file an Answer. For over four years, no activity occurred in this case. A Notice of Proposed Termination was sent to Husband on January 25, 2005. Husband filed a Praecipe of his intention to proceed with the divorce and motioned for the appointment of a special master. Wife objected to said motion but her objections were later withdrawn. On August 7, 2006, pursuant to the parties' stipulation, a special master was appointed.

In July of 2006, Husband suffered a heart attack and lapsed into a coma. On August 18, 2006, in an attempt to keep the divorce matter active, Appellant filed a Petition for Appointment of Guardian Ad Litem, asserting that, since she was given a durable power of attorney for Husband, she should be appointed as his guardian ad litem in this action to be authorized to execute an Affidavit of Consent on Husband's behalf, finalize the divorce and resolve the economic issues. A status conference was held on September 13, 2006. On September 19, 2006, Appellant filed a Praecipe to Withdraw Petition to be appointed guardian because Husband was deceased, rendering the petition moot. No further action was taken by the special master.

Nearly a year later, on September 21, 2007, Appellant filed a Motion to Substitute Personal Representative and to Determine Economic Rights of the Parties, in order to effectuate Husband's wishes as stated in his will. A status conference was set for October 16, 2007; the parties were ordered to file briefs on the issues of: whether the court has the authority to hold a hearing to determine if grounds for divorce exist following the death of a party and whether the Dead Man's Statute would apply to this case. On December 6, 2007, after ...


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