J-A18024-24

2024 PA Super 224

CHARLENE A. MCWILLIAMS

v.

MAKAYLYN MCWILLIAMS, AS 

ADMINISTRATRIX OF THE ESTATE OF 

DEAN A. MCWILLIAMS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 211 WDA 2024

Appeal from the Order Entered February 12, 2024

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): No. FD-21-008779-002

BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.

OPINION BY MURRAY, J.: FILED: September 26, 2024

Makaylyn McWilliams (Appellant), as administratrix of the Estate of 

Dean A. McWilliams (the Estate), appeals from the order granting the 

discontinuance motion filed by Charlene A. McWilliams (Wife). After careful 

review, we affirm.

The trial court summarized the relevant procedural history underlying 

this appeal:

[Wife] and Dean [A.] McWilliams (“Husband”) were married 

on August 16, 2008. On September 20, 2021, Wife filed a 

Complaint in Divorce. Wife’s Complaint in Divorce stated that the 

marriage had been irretrievably broken. Husband was served and 

the Affidavit of Service was filed October 13, 2021.

Over the next two (2) years, Wife filed numerous motions 

related to equitable distribution. On December 29, 2023, Husband 

filed an Affidavit under Section 3301(d) of the Divorce Code[, 23 

Pa.C.S.A. § 3301(d),] and Blank Counter-Affidavit. On the 
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3301(d) Affidavit, Husband’s signature date is listed as September 

28, 2023, and the witness [was Appellant]. 

On January 4, 2024, Husband, through his counsel at that 

time, filed a second Affidavit under 3301(d) [] and Blank CounterAffidavit. On this new 3301(d) Affidavit, Husband’s signature date 

is listed as January 3, 2024. On February 1, [2024, the] 

Certificate of Service for the Affidavit was filed stating that Wife

was served by mail on January 5[, 2024]. This new 3301(d) 

Affidavit listed [Appellant] and Nicholas Gallick [(Gallick)] as 

witnesses. Both of the 3301(d) Affidavits filed by Husband listed 

the date of separation as September 20, 2021.

Husband passed away on January 4, 2024. On January 19, 

2024, Wife, through her counsel, filed a Motion to Discontinue 

Divorce Matter. The motion was scheduled for presentation on 

February 6, 2024. [The] Estate, through counsel, submitted a 

Response to Wife’s Motion to Discontinue Divorce on February 5, 

2024.

On February 6, 2024, after the presentation of [Wife’s]

Motion [to Discontinue] and the Response, [the trial court]

granted Wife’s Motion, and issued an Order discontinuing the 

divorce action due to Husband’s death prior to grounds for divorce 

being established[,] pursuant to Rule 1920.17(d)(2) of the 

Pennsylvania Rules of Civil Procedure.

Trial Court Opinion, 4/8/24, at 1-2. Appellant, as administratrix of the Estate, 

timely filed a notice of appeal. Appellant and the trial court have complied 

with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Did the trial court commit an error of law and/or abuse of 

discretion in failing to find grounds for divorce had been 

established pursuant to 23 Pa.C.S.A. § 3323(g) before 

[Husband’s] death on January 4, 2024[?]

2. Did the trial court commit an error of law and/or an abuse of

discretion in making a determination [that] grounds for divorce 

were not established without holding a hearing, taking 

testimony or considering evidence to determine whether the 
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marriage was irretrievably broken and that the parties had 

lived separate and apart for over a year?

3. Did the trial court commit an error of law and/or an abuse of 

discretion in not finding [Wife] was judicially estopped from 

arguing that grounds for divorce were not established[,] when 

the record confirmed Wife:

a. Filed a complaint in divorce alleging the marriage was 

irretrievably broken in September of 2021; 

b. Filed a complaint in divorce alleging she lived in Butler 

County, Ohio[,] while alleging [Husband] resided at 3129 

Vernon Avenue, Pittsburgh, PA[];

c. Was served with a 3301(d) Affidavit filed by Husband 

alleging the marriage was irretrievably broken and the 

parties have lived separate and apart for over a year; 

d. Signed, dated and served a [Section] 3301(d) CounterAffidavit on Husband’s counsel on January 19, 2024[,]

which did not deny the marriage was irretrievably broken 

or that the parties had lived separate and apart for over a 

year; and

e. E[lectronically f]iled the [Section] 3301(d) CounterAffidavit on January 19, 2024[;], however the filing was 

not docketed[?]

Appellant’s Brief at 4-6 (capitalization modified). 

Appellant’s issues implicate the interpretation of several statutes and 

rules of procedure. Because Appellant raises questions of law, “our standard 

of review is de novo and our scope of review is plenary.” Shell v. Shell, 304 

A.2d 401, 405 (Pa. Super. 2023). 

In order to address Appellant’s issues, a review of the statutes and rules 

at issue is helpful. Wife sought divorce pursuant to 23 Pa.C.S.A. § 3301(d)

(irretrievable breakdown), which provides, in relevant part, as follows:
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(1) The court may grant a divorce where a complaint has been 

filed alleging that the marriage is irretrievably broken and an 

affidavit has been filed alleging that the parties have lived 

separate and apart for a period of at least one year and that the 

marriage is irretrievably broken and the defendant either:

(i) Does not deny the allegations set forth in the affidavit.

(ii) Denies one or more of the allegations set forth in the 

affidavit but, after notice and hearing, the court determines 

that the parties have lived separate and apart for a period of 

at least one year and that the marriage is irretrievably broken.

23 Pa.C.S.A. § 3301(d)(1) (emphasis added). 

Following enactment of Pennsylvania’s Divorce Code, our Supreme 

Court promulgated Pennsylvania Rule of Civil Procedure 1920.42. Rule 

1920.42 authorizes entry of a divorce decree under Section 3301(d), without 

further proceedings, when the parties have satisfied certain filing and notice 

requirements:

(c) Obtaining a divorce decree under Section 3301(d) of 

the Divorce Code.

(1) If a party has filed a complaint requesting a divorce on the 

ground of irretrievable breakdown and the requisite separation 

period has elapsed, the court shall enter a decree in divorce 

after:

(i) proof of service of the complaint has been filed;

(ii) a party has signed and filed an Affidavit under Section 

3301(d) of the Divorce Code averring that the marriage is 

irretrievably broken and that the parties have been separate 

and apart for the required separation period;

(iii) the filed Affidavit and a blank Counter-Affidavit under 

Section 3301(d) of the Divorce Code have been served on the 

other party consistent with Pa.R.C.P. No. 1930.4, and the 
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other party has admitted or failed to deny the averments in 

the Affidavit under Section 3301(d) of the Divorce Code;

(A) If a party files a Counter-Affidavit under Section 

3301(d) of the Divorce Code denying an averment in the 

Affidavit under Section 3301(d) of the Divorce Code, 

including the date of separation, either party may present 

a motion requesting the court resolve the issue.

(B) After presentation of the motion in subdivision (A), the 

court may hear the testimony or, consistent with Pa.R.C.P. 

No. 1920.51(a)(1)(ii)(D), appoint a hearing officer to hear 

the testimony and to issue a report and recommendation.

Note: This subdivision requires service of the CounterAffidavit on the nonmoving party consistent with original 

process since the averments in the moving party’s Affidavit 

under § 3301(d) of the Divorce Code are deemed admitted 

unless denied. See Pa.R.C.P. No. 1930.4 for service of 

original process and Pa.R.C.P. No. 1920.14(b) regarding 

failure to deny averments in the affidavit.

....

(v) a minimum of 20 days from the date of service of the 

Affidavit and blank Counter-Affidavit under Section 3301(d) of 

the Divorce Code as set forth in (c)(1)(iii), the party requesting 

the divorce decree has served on the other party a Notice of 

Intention to File the Praecipe to Transmit Record, which 

included a copy of the proposed Praecipe to Transmit Record 

that indicated the date and manner of service of the Notice of 

Intention to File the Praecipe to Transmit Record, except that 

service of such Notice of Intention is not required if:

(A) the parties have signed and filed Waivers of Notice of 

Intention to File the Praecipe to Transmit Record; or

(B) the court finds that an attorney has not entered an 

appearance on the defendant’s behalf and that the 

defendant cannot be located after a diligent search; and

(vi) the party requesting the divorce decree has completed 

and filed a Praecipe to Transmit Record. If the parties have 

not waived the Notice of Intention to File the Praecipe to 
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Transmit Record, the moving party shall wait a minimum of 20 

days after service of the Notice of Intention to File the Praecipe 

to Transmit Record before filing the Praecipe to Transmit 

Record.

Pa.R.C.P. 1920.42(c)(1)(i)-(vi).

Husband died prior to entry of a divorce decree. Divorce Code Section 

3323 addresses this situation:

(d.1) Death of a party. In the event one party dies during the 

course of divorce proceedings, no decree of divorce has been 

entered and grounds have been established as provided in 

subsection (g), the parties’ economic rights and obligations arising 

under the marriage shall be determined under this part rather 

than under 20 Pa.C.S.[A.] (relating to decedents, estates and 

fiduciaries).

....

(g) Grounds established. For purposes of subsection[] ... (d.1), 

grounds are established as follows:

....

(3) In the case of an action for divorce under section 3301(d), 

an affidavit has been filed and no counter-affidavit has been 

filed or, if a counter-affidavit has been filed denying the 

affidavit’s averments, the court determines that the marriage 

is irretrievably broken and the parties have lived separate and 

apart for at least one year at the time of the filing of the 

affidavit.

23 Pa.C.S.A. § 3323(d.1), (g)(3). 

We address Appellant’s first two issues together, as they are related. 

Appellant first argues that, prior to his death, Husband met the statutory 

requirements for having the parties’ economic rights adjudicated under the 

Divorce Code. Appellant’s Brief at 17. Specifically, Appellant claims that 
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Husband established grounds for divorce under 23 Pa.C.S.A. § 3301(d) 

(irretrievable breakdown). Appellant’s Brief at 18-19. Appellant asserts there 

are only two criteria for establishing grounds for divorce pursuant to section 

3301(d): (1) irretrievable breakdown of the marriage, and (2) the parties have 

lived apart for at least one year. Id. at 19. According to Appellant, these 

criteria were met because (a) Wife’s September 21, 2021, complaint alleged 

the parties’ marriage was irretrievably broken; (b) Husband filed an affidavit

(Affidavit) confirming the marriage was irretrievably broken and that the 

parties had lived apart for at least one year; and (c) Wife did not deny either 

allegation in Husband’s Affidavit. Id. at 19. Appellant asserts, “[i]f Husband’s 

Affidavit averments are unchallenged, grounds [for divorce] are established.” 

Id.

Appellant contends that on January 19, 2024, Wife had served a 

Counter-Affidavit on Husband, which did not deny the averments of Husband’s 

Affidavit. Id. at 20. Appellant acknowledges this Counter-Affidavit was “EFiled” but not docketed. Id. Appellant contends,

[t]he failure to docket the counter-affidavit also satisfied the 

requirement of § 3323(g)(3) ... and no Affidavit has been 

filed, or if a Counter-Affidavit has been filed denying the 

affidavit’s averments .... Under both statutes, grounds [for 

divorce] have been established and neither [statute] requires Wife 

to file a Counter Affidavit to establish grounds....

Id. (emphasis in original). Appellant disputes the trial court’s determination 

that Wife had to admit the allegations of Husband’s Affidavit, prior to his 

death, to establish grounds for divorce under Section 3301(d). Id. at 21. 
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Appellant also disputes the trial court’s application of our decision in 

Shell, claiming the trial court 

misconstrues the dicta in Shell ..., and confuses the procedural 

rules for requesting the entry of a [divorce] decree with those 

needed for establishing grounds for divorce under [Section 

3301](d.1). No language in § 3301(d), § 3323(d.11) or § 

3323(g)(3) require[s] that a divorce decree be entered before 

grounds for divorce are established....

Id. at 22 (some capitalization modified). Appellant claims,

[a] clear reading of [Section 3323(d.1)] makes the date of the 

filing [of] the § 3301(d) Affidavit the determining date for grounds 

rather than an additional twenty (20) day time frame for Wife to 

“possibly” file a Counter-Affidavit when no filing is required....

Id. at 24. 

In her second issue, Appellant argues that our decision in Shell did not 

impose a twenty-day waiting period, after the Affidavit is filed, to establish 

grounds for divorce under Section 3301(d). Id. at 25. According to Appellant, 

the sole issue in Shell was whether the decedent was required to file the

Section 33011(d) Affidavit to establish grounds for divorce. Id. at 27. 

Appellant posits this Court’s discussion regarding the interplay between the 

Rules of Civil Procedure and the statutes was dicta, and therefore not binding. 

Id. According to Appellant, the procedural rules governing Section 3301(d) 

Affidavits have been met, and nothing further was required by Husband to 

establish grounds for divorce under that section. Id. at 28. 

As this case involves statutory interpretation, we are mindful of the 

following:
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[t]he Statutory Construction Act directs that the object of all 

interpretation and construction of statutes is to ascertain and 

effectuate the legislature’s intent. 1 Pa.C.S.[A.] § 1921(a); 

Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. 

of Supervisors, ... 923 A.2d 1099, 1104 (Pa. 2007). Generally, 

the best indicator of legislative intent is the plain language of the 

statute. Walker v. Eleby, ... 842 A.2d 389, 400 (Pa. 2004). In 

construing statutory language, “[w]ords and phrases shall be 

construed according to rules of grammar and according to their 

common and approved usage[.]” 1 Pa.C.S.[A.] § 1903(a). When 

the words of a statute are clear and unambiguous, there is no 

need to look beyond the plain meaning of the statute “under the 

pretext of pursuing its spirit.” 1 Pa.C.S.[A.] § 1921(b); 

Commonwealth v. Conklin, ... 897 A.2d 1168, 1175 (Pa. 

2006). Only “[w]hen the words of the statute are not explicit”

may a court resort to the rules of statutory construction, including 

those provided in 1 Pa.C.S.[A.] § 1921(c). Chanceford, 923 A.2d 

at 1104. A statute is ambiguous when there are at least two 

reasonable interpretations of the text under review. See Del[.]

Cnty. v. First Union Corp., 992 A.2d 112, 118 (Pa. 

2010). Moreover, “[s]tatutes in pari materia shall be construed 

together, if possible, as one statute.” 1 Pa.C.S.[A.] § 1932. 

Finally, it is presumed “[t]hat the General Assembly does not 

intend a result that is absurd, impossible of execution or 

unreasonable.” 1 Pa.C.S.[A.] § 1922(1).

Shell, 304 A.3d at 405. 

Similarly, 

[i]n construing the Rules of Civil Procedure, as the ultimate 

promulgator of said Rules, it is the intent of our Supreme Court 

that controls. In performing our task, we also look to the tools 

of statutory construction. In analyzing the intent of our Supreme 

Court, the best indication of said intent is the plain language of a 

rule. In pursuing that end, we are mindful that when the words 

of a rule are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit. In 

addition, words and phrases shall be construed according to rules 

of grammar and according to their common and approved usage 

while any words or phrases that have acquired a peculiar and 

appropriate meaning must be construed according to that 

meaning. Also, we presume that our Supreme Court does not 
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intend a result that is absurd, impossible of execution or 

unreasonable.

Horwath v. DiGrazio, 142 A.3d 877, 880 (Pa. Super. 2016) (internal 

citations, quotations, and brackets omitted).

In Shell, this Court addressed a situation in which husband died prior 

to filing the affidavit required by section 3323(g)(3). This Court addressed 

whether grounds for divorce are established where the parties have not met 

Pa.R.C.P. 1920.42’s procedural requirements. Shell, 304 A.3d at 411-12. 

This Court explained,

[w]hen the General Assembly enacted Section 3323(g)(3), it was 

presumably aware of Rule 1920.42(c) and the several procedural 

prerequisites for obtaining a divorce under Section 3301(d). 

Among these requirements are not only filing proof of service of 

the complaint[,] but also filing of an affidavit under Section 

3301(d) and serving the other party with both the affidavit and a 

blank counter-affidavit. See Pa.R.C.P. 1920.42(c)(1)(i)-(iii). 

Indeed, these requirements correspond to those that the General 

Assembly laid out in Section 3301(d), which permits divorce (1) 

where a complaint has been filed alleging that the marriage is 

irretrievably broken, (2) an affidavit has been filed alleging that 

the parties have lived separate and apart for a period of at least 

one year and that the marriage is irretrievably broken, and (3) 

the defendant either does not deny the allegations in the affidavit 

or denies one or more of the allegations in the affidavit but, after 

notice and hearing, the court determines that the parties have 

lived separate and apart for a period of at least one year and that 

the marriage is irretrievably broken. See 23 Pa.C.S.[A.] § 

3301(d). Thus, ... we find that Sections 3301(d) and 3323(g)(2) 

have not only substantially identical phrasing but also aims in 

ensuring that grounds for divorce are not established under 

Section 3301(d) until one of the parties has filed an affidavit with 

the required allegations and the other party either admits the 

allegations or, if the allegations are denied, the trial court 

determines that the parties have lived separate and apart 

for a period of at least one year and the marriage is 

irretrievably broken.
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Shell, 304 A.3d at 411-12 (emphasis added). 

Rule of Civil Procedure 1920.42 requires not only the service of the 

affidavit and blank counter-affidavit “consistent with Pa.R.C.P. No. 1930.4,”

but that the other party must have either “admitted or failed to deny the 

averments in the Affidavit[.]” Pa.R.C.P. 1920.42(c)(iii). Under Section 

3301(d), the allegations are not deemed admitted before the 20-day time 

period for filing a counter-affidavit has elapsed. 23 Pa.C.S.A. § 3301(d). 

Instantly, Husband filed his first Affidavit on December 29, 2023, and 

his second Affidavit on January 4, 2024. At the time of Husband’s death, the 

provisions of Pa.R.C.P. 1920.42(c)(iii) had not been met, as the 20-day time 

period had not expired. Husband filed his second Affidavit on January 4, 2024, 

the day of his death. Although Wife is alleged to have served a CounterAffidavit on Husband’s counsel, no Counter-Affidavit was filed as of the date 

of Husband’s death. Further, the Counter-Affidavit is not in the certified 

record.

1 Under Divorce Code Section 3323(g)(3), grounds are only 

established when the Affidavit is deemed admitted or a Counter-Affidavit is 

filed denying the claims. No such event occurred in this case. 

____________________________________________

1 Those items that do not appear of record do not exist for appellate purposes. 

Stumpf v. Nye, 950 A.2d 1032, 1041 (Pa. Super. 2008). There is a dispute 

as to whether the Counter-Affidavit was filed by Wife and then withdrawn. 

However, this does not affect our decision. We view the record as it existed 

on the date of Husband’s death.
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As the trial court explained in its opinion,

[the trial court] could not find that Wife had either admitted or 

failed to deny the averments at the time of Husband’s death. Rule 

1920.42 and Rule 1920.72 make clear that Wife had 20 days 

following the filing of Husband’s 3301(d) affidavit to file a counteraffidavit before those allegations could be deemed to be admitted. 

Husband died before the expiration of those 20 days. As the Court 

stated in Shell, the other party must either admit the allegations 

or deny the allegations in the 3301(d) Affidavit. Here, grounds 

for divorce were not established at the time of Husband’s death 

because Wife did not admit or deny the allegations.

Trial Court Opinion, 4/8/24, at 9. We discern no error in this regard. 

Accordingly, Appellant’s first two issues merit no relief.

In her third issue, Appellant argues that because Wife served a signed 

Counter-Affidavit on January 19, 2024 (i.e., the same day she filed a motion 

to discontinue her divorce action), she should be judicially estopped from 

taking a position contrary to her Counter-Affidavit. Appellant’s Brief at 35. 

The purpose of the judicial estoppel doctrine “is to uphold the integrity 

of the courts by preventing parties from abusing the judicial process by 

changing positions as the moment requires.” Bugosh v. Allen Refractories 

Co., 932 A.2d 901, 912 (Pa. Super. 2007) (citation and quotation marks 

omitted).

[A]s a general rule, a party to an action is estopped from 

assuming a position inconsistent with his or her assertion 

in a previous action, if his or her contention was 

successfully maintained. Accordingly, judicial estoppel is 

properly applied only if the court concludes the following: 

(1) that the appellant assumed an inconsistent position in 

an earlier action; and (2) that the appellant’s contention 

was successfully maintained in that action.
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Black v. Labor Ready, Inc., 995 A.2d 875, 878 (Pa. Super. 2010) (citations 

and quotation marks omitted).

In Shell, this Court rejected a similar argument:

First, while [w]ife’s petition stated that “grounds here have been 

established for the divorce to proceed,” the petition neither 

alleged that the marriage was irretrievably broken nor that the 

parties have lived separate and apart for the requisite period, 

both of which would need to be attested to in an affidavit 

or determined to be established by a trial court under 

Section 3323(g)(3).

Shell, 304 A.3d at 413 (emphasis added). 

Instantly, Wife’s complaint alleged the following:

The marriage has been irretrievably broken and/or in the 

alternative, [Husband] has offered such indignities to the person 

of [Wife], the innocent and injured spouse, so as to render her 

condition intolerable and life burdensome.

Complaint, 9/20/21, ¶ 6. Wife included no averments regarding the length of 

the parties’ separation. Further, grounds were not established in accordance 

with 23 Pa.C.S.A. § 3323(g)(3), as Husband died before his Affidavit could be 

deemed denied. Finally, there are no prior actions successfully maintained by 

Wife. Under these circumstances, we conclude the doctrine of judicial estoppel

does not apply. See Shell, 304 A.3d at 413. Appellant’s third issue merits 

no relief.

Order affirmed.
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DATE: 9/26/2024