J-A27005-20

2021 PA Super 27

IN RE ESTATE OF FIORENTINO CERULLO IN THE SUPERIOR COURT

OF PENNSYLVANIA

APPEAL OF: EXECUTRIX, ANTONIETTE 

VELLECA

No. 1354 EDA 2020

Appeal from the Order Dated June 2, 2020

In the Court of Common Pleas of Northampton County

Orphans’ Court at No: 4818-0047

BEFORE: STABILE, J., NICHOLS, J. and COLINS, J.*

OPINION BY STABILE, J.: Filed: February 25, 2021

Appellant, Antoniette Velleca (“Executrix”), personal representative of 

the estate of Fiorentino Cerullo, deceased (“Husband”), appeals from an order

granting the objections of Cathy Cerullo (“Wife”) to the first and final account 

of Husband’s estate. Husband and Wife married four weeks before Husband 

died of cancer. The Orphans’ Court held that Husband made a valid inter vivos 

gift of a 1988 Porsche, a 2001 BMW motorcycle and a 2004 BMW motorcycle 

(“the vehicles”) to Wife shortly before his death. Executrix argues that the 

Dead Man’s Act, 42 Pa.C.S.A. § 5930, precluded testimony by Wife and several 

witnesses that Husband intended to deliver, and in fact delivered, the titles to 

the vehicles to Wife. We hold that the Dead Man’s Act precludes Wife’s 

testimony concerning delivery of the titles, and without this testimony, there 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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is insufficient evidence to support Wife’s claim of any inter vivos gift. 

Accordingly, we reverse.

On December 8, 2017, Husband and Wife executed prenuptial 

agreements and then married. On January 5, 2018, Husband died. He was 

survived by Wife and his two children. Later in January, the Register of Wills 

admitted to probate a will that Husband executed on November 22, 2017 and 

granted letters testamentary to Executrix, Husband’s sister. Executrix filed a 

first and final account that included the vehicles as assets of Husband’s estate. 

On October 20, 2019, Wife filed objections to the first and final account 

claiming that Husband gifted the vehicles to her before his death, so she 

owned the vehicles instead of the estate.

On January 27, 2020, the Orphans’ Court held an evidentiary hearing 

relating to Wife’s objections. Executrix, the first witness, testified that the 

vehicles were titled in Husband’s name at the time of his death. Executrix 

pointed out that before Husband died, he wrote a note transferring another 

car, a Mercedes, to a non-party, Judy Chapman. Husband did not notarize 

the note because he was too ill to travel to a notary. The Mercedes was 

transferred to Chapman one day before Husband’s death.

Wife presented three witnesses: (1) her neighbor, Kathy Moore; (2) her 

brother Scott Shellhammer; and (3) herself. All three witnesses testified over 

Dead Man’s Act objections lodged by Executrix. Moore testified that during a 

party on September 3, 2017, Husband told her that he wanted Wife to have 

his Porsche because of the great times they had together in the car. 
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Shellhammer testified that during Thanksgiving in 2017, Husband told him 

that he was giving the vehicles to Wife. Husband and Shellhammer had a 

detailed conversation about transporting the vehicles from Husband’s 

residence in Bethlehem, Pennsylvania to Wife’s residence in Glenmoore, 

Pennsylvania. Shellhammer stated the vehicles were never moved to

Glenmoore due to the need for multiple drivers and Husband’s declining 

health. The vehicles remained at Husband’s residence at the time of his death. 

Wife, the final witness, was the only witness who testified about the 

actual delivery of the titles and keys to the vehicles. Wife testified that on 

December 5, 2017, Husband handed her the titles and keys to the vehicles, 

and she placed the keys and titles in or on the respective vehicles in Husband’s 

garage. There were no notations on the titles indicating that Husband was 

transferring the titles to Wife. Instead, the titles were endorsed with 

unnotarized signatures in spaces captioned “Seller.” Wife testified that she 

did not see Husband sign the titles, but she claimed that the signatures on the 

titles were consistent with Husband’s signature. Husband continued to 

maintain insurance coverage on the vehicles until his death. 

Finally, a notarized prenuptial agreement dated December 8, 2017 was 

admitted into evidence without objection by Executrix. Therein, both Husband 

and Wife listed their assets, but neither Husband nor Wife listed the vehicles 

as assets. 

On June 2, 2020, the court granted Wife’s objections to the first and 

final account. On June 17, 2020, Executrix timely appealed to this Court. See 
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Pa.R.A.P. 342(a)(6) (appeal may be taken as of right from Orphans’ Court 

order determining interest in real or personal property). Both Executrix and 

the Orphans’ Court complied with Pa.R.A.P. 1925.

Executrix raises the following issues in this appeal:

A. Did the [Orphans’] Court err in concluding that [Husband] made 

a valid inter vivos gift of the 1988 Porsche, 2004 BMW motorcycle, 

and 2001 BMW motorcycle (“vehicles”) to [Wife]? 

B. Did the [Orphans’] court err in concluding that [Wife] and her 

witnesses are not barred by the Dead Man’s Act? 

C. Did the [Orphans’] Court err in concluding that [Husband] 

delivered the vehicles to [Wife]? 

D. Did the [Orphans’] Court err in concluding that the vehicles are 

not assets of [Husband’s] Estate[?]

Executrix’s Brief at 9. We hold that the Dead Man’s Act precluded Wife’s 

testimony concerning Husband’s delivery of the titles to the vehicles. Absent 

this testimony, Wife’s objection to Executrix’s first and final account fails.

“A valid inter vivos gift requires donative intent, delivery, and 

acceptance.” Estate of Moskowitz, 115 A.3d 372, 386 (Pa. Super. 2015). 

“[T]here must be evidence of an intention to make a [g]ift accompanied by 

[d]elivery, actual or constructive, of a nature sufficient not only to divest the 

donor of all dominion over the property, but to invest the donee with complete 

control.” Id. Possession of car keys or title to the car usually is sufficient to 

prove constructive delivery of a car. Ream’s Estate, 198 A.2d 556, 558 (Pa. 

1964).
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Initially, the burden is on the alleged donee to prove an inter vivos gift 

by clear, precise and convincing evidence. Hera v. McCormick, 625 A.2d 

682, 686 (Pa. Super. 1992). Once prima facie evidence of a gift is established, 

a presumption of validity arises and the burden shifts to the contestant to 

rebut this presumption by clear, precise and convincing evidence. Id.

The Dead Man’s Act provides in relevant part:

Except as otherwise provided in this subchapter, in any civil action 

of proceeding, where any party to a thing or contract in action is 

dead ... and his right thereto or therein has passed, either by his 

own act or by the act of the law, to a party on the record who 

represents his interest in the subject in controversy, neither any 

surviving or remaining party to such a thing or contract, nor any 

other person whose interest shall be adverse to the said right of 

such deceased ... party, shall be a competent witness to any 

matter occurring before the death of the said party.

42 Pa.C.S.A. § 5930. Under the Dead Man’s Act, three conditions must be 

present in order to disqualify a witness under the Act: (1) the deceased must 

have had an interest in the matter at issue; (2) the interest of the witness 

sought to be disqualified must be adverse; and (3) a right of the deceased 

must have passed to a party of record who represents the deceased’s interest. 

Matthew’s Estate, 246 A.2d 412, 416 (Pa. 1968) (citing Hendrickson 

Estate, 130 A.2d 143 (Pa. 1957)). The purpose of the Dead Man’s Act 

is to prevent the injustice that would result from permitting a 

surviving party to a transaction to testify favorably to himself and 

adversely to the interest of the decedent when the representative 

of the decedent would be hampered in attempting to refute the 

testimony by reason of the death of the decedent. The theory is 

that because the decedent’s representative is unable to present 

evidence regarding the transaction, the other party to the 

transaction should be similarly restricted.
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Estate of Cecchine, 485 A.2d 454, 458 (Pa. Super. 1984) (citation omitted).

Application of the Dead Man’s Act becomes “difficult,” however, “where 

there are allegations of an inter vivos gift by the decedent to the challenged 

donee.” Friedeman v. Kinnen, 305 A.2d 3, 4 (Pa. 1973). In this situation, 

“both the alleged donee and the estate have an interest in the property which 

may be adverse to the interest of the decedent, depending on whether the 

alleged transfer took place or not.” Id. In such circumstances, 

if a valid inter vivos transfer can be shown by independent 

evidence [b]efore the admission of any testimony by the alleged 

donee, the donee will be considered to represent the interest of 

the decedent and will be permitted to testify. Conversely, if the 

alleged donee fails to establish a prima facie gift by independent 

testimony before he takes the stand, he will not be competent to 

testify.

Id. 

The Superior Court has articulated this rule as follows:

Where . . . there is an issue regarding the validity of an inter vivos

gift, the court may not admit statements of decedent absent 

independent testimony establishing prima facie evidence of 

donative intent and delivery. If the alleged donee fails to 

establish prima facie evidence of a gift or transfer by independent 

testimony before he takes the stand, he is not competent to 

testify.

Hera, 625 A.2d at 688 (citing Friedeman; emphasis added); see also 

Estate of Petro, 694 A.2d 627, 632-33 (Pa. Super. 1997) (under Dead Man’s 

Act, “the court could not admit the daughters’ testimony regarding [the 

decedent’s] statements about inter vivos gifts without independent testimony 
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establishing prima facie evidence of donative intent and delivery”) (citing 

Hera; emphasis added). 

We are not aware of any decision that addresses whether the Dead 

Man’s Act is satisfied when an interested party presents independent 

testimony establishing prima facie evidence of donative intent but fails to 

present independent evidence of delivery before testifying about this subject 

herself. Nevertheless, it is clear from Friedeman, Hera and Petro that the 

proper result in such a case would be to prohibit the interested party’s 

testimony concerning delivery without first admitting independent evidence of 

delivery, a required element of establishing an inter vivos gift.1

____________________________________________

1 The Orphans’ Court may have been misled by an error in another Dead Man’s 

Act decision from this Court, Zigmantanis v. Zigmantanis, 797 A.2d 990 

(Pa. Super. 2002). The dispute in Zigmantanis was whether the father of 

three brothers gifted a parcel of land to one of the brothers, Edward. The 

Orphans’ Court precluded Edward’s testimony under the Dead Man’s Act 

because he failed to present independent testimony concerning intent. This 

Court affirmed. In the course of our opinion, we quoted Hera for the 

proposition that the court “may not admit statements of decedent absent 

independent testimony and establishing prima facie evidence of donative 

intent.” Id., 797 A.2d at 995 (citing Hera, 625 A.2d at 688). Unfortunately, 

we failed to complete this quote by omitting that independent testimony of 

“delivery” was required as well. Hera, 625 A.2d at 688 (“[w]here, as in this 

case, there is an issue regarding the validity of an inter vivos gift, the court 

may not admit statements of decedent absent independent testimony 

establishing prima facie evidence of donative intent and delivery.”) 

(emphasis added). This omission was not crucial to our decision in 

Zigmantanis, because the lack of independent evidence of intent removed 

any need to consider the issue of delivery. In the present case, however, this 

omission appears to have misled the Orphans’ Court, for the Court recited 

Zigmantanis’s incomplete statement, Opinion, 6/2/20, at 3-4, and then 

improperly admitted Wife’s testimony on delivery despite the lack of 

independent evidence on this subject.
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In the present case, Wife presented independent evidence of Husband’s 

donative intent through Moore and Shellhammer, two witnesses who do not 

stand to benefit from this case. Moore testified that four months before 

Husband’s death, Husband stated that he wanted Wife to have his Porsche. 

Shellhammer testified that during Thanksgiving, around six weeks before his 

death, Husband stated that he was giving the vehicles to Wife and spoke with 

Shellhammer about the logistics of transporting the vehicles to Wife’s 

residence. Further independent evidence of Husband’s donative intent comes 

from the prenuptial agreement executed on the date of Husband’s and Wife’s 

marriage, which demonstrates that Husband did not list the vehicles as his 

own assets. 

Wife failed, however, to present independent evidence of Husband’s 

actual or constructive delivery of the vehicles. Neither Moore nor 

Shellhammer testified about delivery of the vehicles or the vehicle titles to 

Wife. In addition, while the prenuptial agreement demonstrated Husband’s 

intent to give the vehicles to Wife, it did not show that Husband actually 

delivered the vehicles or titles to Wife. The only witness who testified about 

Husband’s delivery of the titles was Wife—but since there was no independent 

prima facie evidence of delivery, Wife was not competent to testify about 

delivery under the Dead Man’s Act. Hera, 625 A.2d at 688. The Orphans’ 

Court erred by admitting Wife’s testimony concerning delivery—and without 
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Wife’s testimony on this subject, her claim that Husband gifted the vehicles to 

her fails. Id.

Accordingly, we reverse the Orphans’ Court’s order granting Wife’s 

objection to the first and final account of Husband’s estate.

Order reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/21