J-S50028-14

2014 PA Super 270 TILLIE F. FULTON, ADMINISTRATRIX d.b.n.c.t.a. OF THE ESTATE OF FERN O. FULTON, DECEASED, Appellant

v.

DONALD J. FULTON AND LORA F. FULTON, HIS WIFE; RONALD A. FULTON AND SYLVIA E. FULTON, HIS WIFE; AND ERNEST E. FULTON AND MYRNA C. FULTON, HIS WIFE, Appellees : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : : : : : : : No. 282 WDA 2014

Appeal from the Order Entered January 22, 2014, In the Court of Common Pleas of Fayette County, Civil Division, at G.D. No. 545 of 2011.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ

. OPINION BY SHOGAN, J.: FILED DECEMBER 05, 2014 Appellant, Tillie F. Fulton, as Administratrix de bonis non cum

testamento annexo 1 (“Administratrix”) of the estate of her mother-in- law, Fern O. Fulton (“Decedent”), appeals from the Janua ry 22, 2014 order of the Fayette County Court of Common Pleas dismissing thi s case on the basis of

laches. We affirm.

1 If an executor dies while performing duties, a co urt will appoint an administrator d.b.n.c.t.a . to complete distribution of a decedent’s estate. 20 Pa.C.S. § 3159.J-S50028-14

- 2

-

In an opinion denying Administratrix’s motion for summary judgment, the trial court explained the basis of this suit, a s follows:

The Plaintiff is the Administratrix of the Estate o f Fern O. Fulton (the “Decedent”). [Decedent passed away on June 26 , 2008.] The Defendants [are sons] Donald J. Fulton and [his wife,] Lora F. Fulton, Ronald A. Fulton and [his wife,] Sylvia E. Fulton, and Ernest E. Fulton and [his wife,] Myrna C. Fulton . . . . [T]he Decedent’s son and agent, Donald J. Fulton, . . . c onveyed several properties owned by the Decedent . . . . The facts of this case are not in dispute. The De cedent had six children, [2] including Marvin Fulton, who died on July 18, 2008, and [Appellees Donald J.] Fulton, Ronald A. F ulton, and Ernest E. Fulton. The Decedent’s husband, Solomon L. Fulton, passed away on July 13, 1999. The Plaintiff is the Decedent’s daughter-in-law and Marvin Fulton’s widow. On July 21, 1999, the Decedent executed a [power o f attorney] POA naming [Donald] as her attorney-in-fa ct. The POA gave [him], inter alia , authority to exercise control over the Decedent’s affairs regarding asset management, esta te planning, medical procedures, admission into medical faciliti es and other health care decisions.

* * * Using the POA, [Donald] began dividing up the fami ly farm, [3] which was located in Springfield Township, Fayette

2 Decedent’s children are Earnest, Marvin, who is d eceased, Brent, Karen, and twins, Donald and Ronald. Deposition of Donald Fulton, 5/25/12, at 11.

3 During his May 25, 2012 deposition, Donald testif ied that in 1981 his mother and father held a family meeting and told th eir children that they “wanted the property divided up among the kids . . . . equally divided among us brothers and sisters.” N.T., 5/25/12, at 12–13. Donald testified that there was another meeting in 1992, where Decedent a nd her husband, Solomon, gathered all of their children, minus spou ses, and reiterated “how the farm was to be subdivided.” Id . at 18. Answers to interrogatories of all Appellees were consistent. Appellee Ronald Fulton stated in his answers toJ-S50028-14

- 3

-

County, Pennsylvania. [Donald] made the first conv eyance on March 20, 2000. He conveyed 9.05 acres to himself and his wife, Lora F. Fulton. [4] [Donald] then conveyed 39.01 acres to himself and Lora two years later on March 25, 2002. That same day, [Donald] conveyed 32.21 acres to Ronald A. Ful ton and [Ronald’s] wife, Sylvia E. Fulton[,] and 29.61 acre s to Ernest E. Fulton and his wife, Myrna C. Fulton. The conveyed parcels were owned by Decedent[,] and one dollar ($1.00) was pai d in consideration for each of the properties. Trial Court Opinion (Summary Judgment), 11/26/12, a t 2–3.

interrogatories that “it was agreed between the sib lings which portion of the farm each was to receive.” Defendants, Ronald A. F ulton and Sylvia E. Fulton’s, Answers to Interrogatories and Response t o Request for Production of Documents, 2/3/12, at ¶ 9; Defendants, Donald J. Fulton and Lora F. Fulton’s, Answers to Interrogatories and Response t o Request for Production of Documents, 2/3/12, at ¶ 7. In Ernest’s answers to interrogatories, he described the 1992 meeting of all siblings with the ir parents as follows: On a Sunday in 1992, Solomon L. Fulton and Fern O. Fulton held a meeting in their kitchen with their children and without in-laws being present. Using maps spread out on the table, they explained to their children how they wanted the pro perty divided and which parcels were to go to each child. Defendant Ernest E. Fulton’s Affidavit in Oppositio n to Plaintiff’s Motion for Summary Judgment, attached to Defendant’s Response to Plaintiff’s Motion for Summary Judgment; 7/27/12; at Exhibit A, ¶ 6.

4 In answers to interrogatories, Donald stated that his parents previously conveyed a twenty-eight-acre tract to their son, Br ent, and his wife, Regina, in April 1984, and a 23.84-acre tract to their son, Marvin, and his wife, [Administratrix], in October 1992. Donald also sta ted that his sister, Karen, was to “receive the 9.05-acre tract of land upon wh ich the house was located,” which Donald ultimately conveyed to himse lf at his parents’ direction because Karen “was undergoing difficultie s with the Internal Revenue Service . . . .” Defendants, Donald J. Ful ton and Lora F. Fulton’s, Answers to Interrogatories and Response to Request for Production of Documents, 2/3/12, at ¶ 8.J-S50028-14

- 4

-

On April 29, 2003, Decedent commenced an action at law against Donald, only, 5 in the Court of Common Pleas of Fayette County, in which she sought money damages in connection with the conveya nces he made.

Fulton v. Fulton , 952 of 2003, G.D. Decedent died five years later , on June 26, 2008, leaving a will that named Marvin as executor of her estate. Trial Court Opinion (Summary Judgment), 11/27/12, a t 3. Marvin died one year later, on June 23, 2009. Administratrix’s Bri ef at 6. Decedent’s action at law was not litigated to conclusion before her d eath or Marvin’s death, and the common pleas court ultimately dismissed tha t suit for lack of activity. Id .; Trial Court Opinion, 1/22/14, at 4. On February 9, 2011, Administratrix was appointed Administratrix d.b.n.c.t.a . of Decedent’s estate. Order, 2/9/11: R.R. at 116a; Administratri x’s Brief at 6. Administratrix brought this action in equity again st Donald and his wife, Lora, Ronald, and his wife, Sylvia, and Ernes t, and his wife, Myrna, (collectively “Appellees”) on March 9, 2011, seekin g both that the conveyances be set aside and the imposition of a co nstructive trust upon the conveyed properties. Appellees filed an Answer, Ne w Matter, and Counterclaim on June 1, 2011, and therein pled the affirmative defense that Administratrix’s claims were barred by the doctrine of laches. On June 29,

5 The trial court noted that Decedent successfully joined the additional appellees herein as additional defendants in the 20 03 action at law, but the court later dismissed them “pursuant to the grantin g of preliminary objections.” Trial Court Opinion, 1/22/14, at 3.J-S50028-14

- 5

-

2012, Administratrix filed a motion for summary jud gment, which the trial court denied on November 27, 2012, after receiving briefs and holding oral argument. Thereafter, the parties filed pretrial s tatements in January and February 2013, and the trial court held a pretrial conference on March 18, 2013. On that date, the trial court entered an ord er directing the filing of

briefs on the issue of laches and scheduled a heari ng for May 22, 2013. The trial court entered an order on January 22, 2014, s tating, in pertinent part, as follows: “[T]he doctrine of laches applies to b ar the claims in [Administratrix’s] Complaint. It is further ordere d and decreed that the Complaint is dismissed with prejudice.” Order, 1/2 2/14. Administratrix filed a timely notice of appeal, and both the trial court and Administratrix complied with Pa.R.A.P. 1925. Administratrix raises the following two issues on appeal: I. Is a third party’s lack of due diligence in pro secuting an action at law imputable to a complaining party so as to ba r that party’s separate equitable action under the doctrine of lac hes?

II. Does the doctrine of laches bar a claim when n o evidence is presented demonstrating prejudice from a lapse in t ime? Administratrix’s Brief at 4 (full capitalization om itted). We will address both issues together. The doctrine of laches is an equitable bar to the prosecution of stale claims and is “the practical application of the max im that ‘those who sleep on their rights must awaken to the consequence that they haveJ-S50028-14

- 6

-

disappeared.’” Kern v. Kern 892 A.2d 1, 9 (Pa. Super. 2005) (quoting

Jackson v. Thomson , 53 A. 506, 506 (Pa. 1902)). The question of whether laches applies is a question of law; thus, we are not bound by the

trial court’s decision on the issue. United Nat. Ins. Co. v. J.H. France

Refractories Co. , 668 A.2d 120, 124 n.4 (Pa. 1995) (citing 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agen cies , 489 A.2d 733, 736 (Pa. 1985)). The question of laches itsel f, however, is factual, In

re Estate of Scharlach , 809 A.2d 376 (Pa. Super. 2002), and is determined by examining the circumstances of each c ase. Sprague v. Casey , 550 A.2d 184 (Pa. 1988). See also Patten v. Vose , 590 A.2d 1307, 1309 (Pa. Super. 1991) (“The existence of lac hes is a factual issue to be decided according to the circumstances in each p articular case.”); Holiday Lounge, Inc. v. Shaler Enterprises Corp. , 272 A.2d 175, 177 (Pa. 1971); Dorsch v. Jenkins , 365 A.2d 861, 864 (Pa. Super. 1976). We have outlined the parameters of the doctrine of laches as follows: Laches bars relief when the complaining party is gu ilty of want of due diligence in failing to promptly institute the action to the prejudice of another. Thus, in order to prevail on an assertion of laches, respondents must establish: a) a delay aris ing from petitioner’s failure to exercise due diligence; and , b) prejudice to the respondents resulting from the delay. Moreover , the question of laches is factual and is determined by examining the circumstances of each case.

Estate of Scharlach , 809 A.2d at 382–383 (quoting Sprague , 550 A.2d at 187–188). Unlike the application of the statute of limitations, exercise of theJ-S50028-14

- 7

-

doctrine of laches does not depend on a mechanical passage of time. Kern , 892 A.2d at 9; United Nat. , 668 A.2d at 124–125. Indeed, the doctrine of laches may bar a suit in equity where a comparable suit at law would not be barred by an analogous statute of limitations. United Nat. , 668 A.2d at 124–25. Moreover, [t]he party asserting laches as a defense must pres ent evidence demonstrating prejudice from the lapse of time. Su ch evidence may include establishing that a witness has died or become unavailable, that substantiating records were lost or destroyed, or that the defendant has changed his position in a nticipation that the opposing party has waived his claims.

Commonwealth ex rel. Baldwin v. Richard , 751 A.2d 647, 651 (Pa. 2000) (internal citations omitted). In analyzing whether a delay occurred in this case , the trial court

stated as follows: On July 21, 1999, . . . Decedent executed a power o f attorney appointing Donald J. Fulton as her attorney-in-fact

. See , Complaint ¶ 4. Between March 2000 and March 2002, Donald J. Fulton conveyed land belonging to the Decedent in S pringfield Township, Fayette County to the Defendants at the w ithin action for nominal or no consideration. Id . at ¶7–9. On August 14, 2012, [6] the Decedent, through counsel, sent a letter to Defendants disputing the legality of such

6 The trial court’s reference to this date is an ob vious error, as it does not “fit” chronologically, and the August 14, 2012 lett er is described as being dated prior to April 29, 2003 , in the subsequent sentence by the trial court. We cannot verify the correct date of that letter, h owever, because the complaint at 952 of 2003, G.D. is not in the record certified to us on appeal. The 2003 complaint is discussed in the notes of tes timony from the May 22, 2013 oral argument on the applicability of laches, in the trial court opinion,J-S50028-14

- 8

-

transfers and requested that the properties be retu rned to her. Thereafter, on April 29, 2003, the Decedent, throug h counsel, filed a Complaint alleging that Donald J. Fulton “a cting with the Authority of the Durable Power of Attorney” conveye d assets of the Decedent to himself and to others as more parti cularly set forth therein to the “detriment” of the Decedent. See , Complaint at 952 of 2003, G.D. In 2003, the Decedent request ed a monetary judgment, but did not seek the return of p roperty. Subsequently, the Decedent sought to join additiona l defendants, namely the Defendants herein, which the Court permitted, but such defendants were dismissed pursu ant to the granting of preliminary objections. In September 2 006, the Decedent filed a Petition to Enforce Agreement wher ein she alleged correspondence from Defendant, Donald J. Fu lton, in settlement negotiations required the transfer of th e real property back to the Decedent. Such Petition was denied by reason of Decedent failing to appear and being unable to proc eed. Decedent took no further affirmative actions to pur sue the allegations of her Complaint. On June 26, 2008, the Decedent died, leaving a wil l appointing Marvin W. Fulton as Executor. Marvin W. Fulton subsequently died on June 23, 2009, and by way of C ourt Order, Plaintiff was appointed as Administratrix of the De cedent’s Estate on February 9, 2011. By way of a delay, approximately eleven years pass ed between the time of the conveyances at issue and th e time that Plaintiff, Tillie F. Fulton, Administratrix d.b.n.c .t.a. of the Estate or Fern O. Fulton, deceased, instituted the within action. The Court is cognizant that the current Plaintiff lacke d standing to challenge the conveyances until she became the Dece dent’s personal representative. Nonetheless, the Court be lieves an examination of the Decedent’s actions are necessary to determine whether a delay occurred.

and elsewhere. The complaint at 952 of 2003, G.D. apparently was attached to Appellant’s trial brief on the subject of laches , see N.T., 5/22/13, at 4, but only the fact of the brief’s filing on May 16, 2013 , is noted in the docket; the brief itself is not included in the record. In our view, the absence of the complaint at 952 of 2003, G.D., is detrimental to A dministratrix’s case.J-S50028-14

- 9

-

A review of the Record in the instant case and at Case No. 952 of 2003 reveals that the Decedent filed suit ag ainst Donald J. Fulton and therein alleged his conveyances of la nd belonging to her occurred to her detriment. The Court notes that the Decedent requested monetary relief and did not requ est to set aside the conveyances. The Court further notes tha t on the Record at Case No. 952 of 2003[,] the Decedent fail ed to diligently pursue her legal rights, finding an inac tive docket for many years, finding that the Decedent failed to app ear for a scheduled court hearing, and finding that the case was dismissed for inactivity. The reason for the Decedent failin g to diligently pursue her actions at Case No. 952 of 2003 is not k nown, nor will this Court speculate as to such. Although Case No. 952 of 2003 is not identical to the instant action, the basis for the causes of action are similar enough for this Court to determine that a delay of eleven years has occurred, and such a delay was the result of th e lack of due diligence of the Decedent and her first Executor of the Estate, Marvin W. Fulton. Trial Court Opinion, 1/22/14, at 2–4. Administratrix argues that in applying the doctrin e of laches, the trial

court based its determination that Administratrix l acked due diligence on its assessment of the Decedent’s conduct in failing to prosecute her separate

action at law to resolution before her death. Admi nistratrix maintains that this assessment thus permitted the trial court to i mpute the acts of a third party—Decedent—to Administratrix in order to find und ue delay, rather than independently evaluating Administratrix’s promptnes s in bringing the instant action after her appointment. Administratrix sugge sts that this

determination overlooks the fact that until she was appointed as personal representative of Decedent, Administratrix had no s tanding to challenge theJ-S50028-14

- 10

-

conveyances. Therefore, she contends that the conc lusion that laches could run against her, before she had the legal ability t o assert her rights, is

flawed. The delay in this case extended over a nine-year p eriod. The conveyances occurred in March of 2000 and March of 2002. The present suit

was instituted in 2011. While Administratrix had n o standing to proceed before that time, Decedent certainly did, as did Ad minstratrix’s husband, Marvin, the executor of Decedent’s estate. Deceden t, who obviously had some misgiving about the conveyances, timely filed suit against Donald only, apparently seeking only money damages. 7 Decedent did not seek to have the conveyances set aside nor seek the imposition o f a constructive trust upon the conveyed properties. We disagree with Administratrix that the trial cou rt’s consideration of the existence of a prejudicial delay must be based solely on Administratrix’s actions because she had no standing to proceed unti l her appointment. It is noteworthy that Administratrix stood in the shoes o f her predecessor, Decedent’s executor, Marvin, who stood in the shoes of Decedent, in instituting a cause of action, pursuant to 20 Pa.C. S. § 3373 (“An action or proceeding to enforce any right or liability which survives a decedent may be

7 While we cannot ascertain this information from t he complaint filed at 952 of 2003, G.D., the trial court did have the 2003 complaint before it, and we rely on the trial court’s description of that suit. Trial Court Opinion, 1/22/14, at 3.J-S50028-14

- 11

-

brought by or against his personal representative a lone or with other parties as though the decedent were alive.”). Further, aft er Executor Marvin’s death, Administratrix, as administrator d.b.n.c.t.a ., “shall stand in [her] predecessor’s stead for all purposes . . . .” 20 P a.C.S. § 3326. Thus, we

observe no abuse of discretion in the trial court’s consideration of Decedent’s non-action, as well as Marvin’s non-action, when ev aluating whether delay occurred herein sufficient to support the doctrine of laches. In suggesting that the trial court erred by failin g to consider Adminstratrix’s acts, alone, in evaluating whether laches barred this claim and ignoring that she did not attain the ability to challenge the conveyances until she was appointed as Decedent’s personal repr esentative, Administratrix disregards the fact that she is acti ng on Decedent’s behalf, not her own behalf. As such, it was proper for the trial court to look to Decedent’s and Marvin’s non-actions, as well, in ev aluating whether laches precluded this claim. In determining whether a par ty exercised due diligence, the focus is on what the party reasonabl y should have known “by

the use of the means of information within his reac h, with the vigilance the law requires,” not on what he actually knew. Sprague , 550 A.2d at 188 (quoting Taylor v. Coggins , 90 A. 633, 634 (1914)). “What the law requires . . . is to discover those facts which wer e discoverable through the exercise of reasonable diligence.” Sprague , 550 A.2d at 188.J-S50028-14

- 12

-

As noted previously, and as expressed by the trial court, Decedent, herself, did not file suit against all Appellees, a nd importantly, did not seek a constructive trust on the conveyed properties. Rat her, she sought money damages from her personal representative, Donald. For five years, that action languished. Upon Decedent’s death, her exec utor, Marvin, took no affirmative action to pursue the allegations of the 2003 complaint. He did not move the action at law forward, nor did he purs ue imposition of a constructive trust on the conveyed properties in eq uity. We have no hesitation in concluding that the nine-to-eleven-ye ar passage of time, from the time of the conveyances until Administratrix in stituted this suit in equity, constituted sufficient delay for purposes of the do ctrine of laches. Moreover, we likewise agree that Appellees were pr ejudiced by the delay. Prejudice may be shown “if relevant records have disappeared, if a key witness is now deceased, or cannot be located, or if the defendant changed his position based on the expectation that plaintiff did not intend to pursue the claim.” See Del–Val Electrical Inspection Service, Inc. v. Stroudsburg–East Stroudsburg Zoning and Codes Office , 515 A.2d 75, 76 (Pa. Cmwlth. 1986) (citing Class of Two Hundred Administrative Faculty Members v. Scanlon , 466 A.2d 103 (Pa. 1983)). The party asserting laches as a defense must presen t evidence demonstrating prejudice from the lapse of time. Commonwealth v. Gilligan , 195 Pa. 504, 46 A. 124 (1900). Such evidence may include establishing that a witne ss has diedJ-S50028-14

- 13

-

or become unavailable, that substantiating records were lost or destroyed, or that the defendant has changed his po sition in anticipation that the opposing party has waived his claims. Kay v. Kay , 460 Pa. 680, 334 A.2d 585, 587 (1975).

Com. ex rel. Baldwin v. Richard , 751 A.2d 647, 651 (Pa. 2000). In finding prejudice herein, the trial court state d as follows: Next, we consider whether the delay caused prejudi ce to accrue to Defendants. See Stilp [ v. Hafer, 718 A.2d 290 (Pa. 1998) ], at 293. Of particular relevance for our conside ration of this element is the fact that the two material witn esses to this case, the Decedent and Attorney Michael J. Macko, w ho witnessed the real estate transfers, are deceased. It is wellsettled law that the doctrine of laches is applicab le peculiarly where the difficulty of doing justice arises throug h the death of the principal participants in the transactions comp lained of, or of the witnesses or witnesses to the transactions, or by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impo ssible. In re Wallace’s Estate , 149 A. 473, 475 (Pa. 1930). The Court also notes that the passage of eleven ye ars in relation to the upkeep, maintenance, and improvemen ts on and to the properties at issue would cause prejudice to the Defendants if such conveyances were set aside or he ld in trust. Therefore, considering the absence of living witne sses to the alleged events and the sum of money and labor e xpended by the Defendants maintaining the properties, this Cou rt holds that the Defendants are at a disadvantage to defend this lawsuit, that the relief requested would cause distinct prejudice , and as such the doctrine of laches must be applied to bar the c laims in Plaintiff’s Complaint. Stilp , 718 A.2d at 293; see also Wallace’s Estate , 149 A. at 475. Trial Court Opinion, 1/22/14, at 4–5. We previously considered whether a delay prejudice d the appellees in

Kern , 892 A.2d 1. Referencing Stilp , we noted the following:J-S50028-14

- 14

-

Of particular relevance for our consideration of th is element [of prejudice] is the fact that the two material witnes ses to this case, John and Rayburn, are deceased. It is well-settled law that the doctrine of laches is applicable peculiarl y where the difficulty of doing justice arises through the death of the principal participants in the transactions comp lained of, or of the witnesses or witnesses to the transac tions , or by reason of the original transactions having becom e so obscured by time as to render the ascertainment of the exact facts impossible. See In re Wallace’s Estate , 299 Pa. 333, 340, 149 A. 473, 475 (1930). The record indicates that there are no living witn esses to [the decedent’s business partner’s] alleged acts of subversion and control . . . . Therefore, it is clear that the absence of living witnesses to the alleged events has left Appellees at a distinct disadvantage in defending this law suit and, theref ore, they are prejudiced by the delay in this case. See Stilp , at 134, 718 A.2d at 293; see also Wallace’s Estate , at 340, 149 A. at 475. Therefore, we are satisfied that the trial court di d not err when it determined that counts II and III of [the plaintiff ’s] complaint were barred by the doctrine of laches.

Kern , 892 A.2d at 10 (emphasis added). As we noted in an other case finding prejudice: [T]he ultimate issue . . . was the decedent’s inten t in drafting the trust deed. Due to the fact appellant waited u ntil after the decedent and all of the witnesses to the creation a nd revocation of the trust had passed away to prosecute this acti on, appellees have suffered substantial prejudice by not being af forded the opportunity to question witnesses about the creatio n of the trust deed. In that appellant’s delay was unreasonable a nd resulted in prejudice to appellees, we find the doctrine of lac hes bars appellant’s claim.

In re Estate of Devine , 910 A.2d 699, 702 (Pa. Super. 2006) (internal citation omitted) (citing Estate of Scharlach , 809 A.2d at 382–383). In addition, and as noted by the trial court, all Appe llees represented either inJ-S50028-14

- 15

-

depositions or answers to interrogatories that they have had to expend sums relating to the upkeep, maintenance, or improvement s to the properties during the passage of the eleven years from the tim e of the conveyances until the imposition of the suit in equity, all of which would cause prejudice to Appellees if the conveyances were set aside. Tr ial Court Opinion, 1/22/14, at 5. Therefore, we are satisfied that the trial court d id not err when it determined that Administratrix’s complaint was barr ed by the doctrine of laches. Consequently, we affirm the order of the t rial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 12/5/2014