J-A01039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA ROSMARIN, EXECUTRIX 

FOR THE ESTATE OF GENE BARCLAY 

ROSMARIN 

Appellant

v.

LAKPA YANJI SHERPA

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1132 EDA 2017

Appeal from the Decree March 3, 2017

In the Court of Common Pleas of Bucks County 

Orphans' Court at No(s): 2014-E0441

BEFORE: LAZARUS, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 20, 2018

Barbara Rosmarin1, Executrix of the Estate of Gene Barclay Rosmarin

(Executrix), appeals from the decree entered March 3, 2017, in the Court of 

Common Pleas of Bucks County, that denied her petition and “order to show 

cause” filed against Lakpa Yanji Sherpa, wife of Gene Barclay Rosmarin 

(Decedent). Specifically, the orphans’ court’s decree denied Executrix’s

“Petition to (1) Strike Lakpa Sherpa’s Claim to be Recognized as Decedent’s 

Surviving Spouse because the Alleged Marriage between Lakpa Sherpa and 

the Decedent is Fraudulent and therefore Void under 23 Pa.C.S.A. § 

3304(a)(3)[,] and (2) Strike Lakpa Sherpa’s Claim Against Decedent’s Estate 

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1

In the orphans’ court, Rosmarin’s surname is Nolan.
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Pursuant to 20 Pa.C.S.A. § 2507(3) because Decedent’s Last Will and 

Testament was Drafted in Contemplation of his Future Marriage to Lakpa 

Sherpa,” as well as Executrix’s “Order to Show Cause,” requesting the 

orphans’ court to strike Lakpa Sherpa’s spousal share claim pursuant to the 

doctrine of unclean hands.2 In this appeal, Executrix presents multiple issues, 

discussed below, in support of her contention that the orphans’ court erred in 

its determination that Sherpa is entitled to pursue her spousal share of 

Decedent’s estate. We affirm on the basis of the orphans’ court’s sound 

opinions, filed March 7, 2017, and May 26, 2017. 

The orphans’ court has fully set forth the facts and procedural history of 

this case in both opinions, and we need not reiterate the background herein. 

We simply state that Executrix is the ex-wife of Decedent. Decedent died 

testate on June 10, 2014, having executed a Will, dated April 9, 1998. 

Following his 1996 divorce from Rosmarin, Decedent married Sherpa in Nepal 

in 2008, and he then returned to the United States. On January 22, 2014, 

Sherpa entered the United States as a lawful permanent resident. Decedent 

did not execute another will after his marriage to Sherpa.

____________________________________________

2

In the orphans’ court, Executrix withdrew her attempt to strike Sherpa’s 

spousal share claim pursuant to 20 Pa.C.S. § 2507(3). See Orphans’ Court 

Opinion, 3/7/2017, at 2.
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On August 8, 2014, Executrix was granted Letters Testamentary. 

Sherpa filed a spousal election against Decedent’s Will on January 18, 2014. 

Subsequently, Executrix filed the above-mentioned petition and order to show 

cause. Following entry of the orphans’ court’s March 3, 2017 decree, Executrix 

filed this appeal.

Executrix presents nine claims in her brief, as follows:

1. Is it an abuse of discretion to go against the weight of the 

evidence to disregard authenticated, admitted and highly 

probative documentary evidence and to accept as true selfserving testimony from an interested party with an established

history of making material misrepresentations?

2. Is it an abuse of discretion/reversible error for a court to 

erroneously hold that there was no testimony establishing the 

prima facie case when admissible testimony from an uninterested, 

non-party witness establishing the prima facie case was relied 

upon by the court and cited to in its decision?

3. Is it an abuse of discretion to refuse to admit affidavits 

submitted to United States Citizenship and Immigration Services 

by a party witness and her cousin, who is also a witness, under 

the doctrine of completeness and Pa.R.E. 106 when the affidavits 

that were highly probative and exposed material

misrepresentations made under oath during the pendency of this 

litigation?

4. Is it an abuse of discretion for a court of equity to 

disregard the doctrine of unclean hands to grant relief to a 

deceitful party that advanced its position by lying about material 

facts to influence the outcome of the matter in controversy that 

affects the relationship of the parties?

5. Is it an abuse of discretion for a court of equity to refuse 

to invoke the doctrine of unclean hands when it is shown by 
J-A01039-18

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documentary evidence, sworn statements and judicial admissions 

that a party to the litigation lied to United States Citizenship and 

Immigration Services, committed perjury and suborned perjury

regarding elements central to the matter in controversy?

6. Does 23 Pa.C.S.A. § 3304(a)(3) authorize the orphans’ 

court to annul a void marriage fraudulently undertaken solely to 

defraud United States Citizenship and Immigration Services based 

upon the parties’ lack of capacity to consent to a marriage that is 

void for illegality.

7. Is a marriage void where both of the parties lacked 

capacity to consent to the marriage because it was entered into 

solely for an illegal purpose in express violation of federal statute?

8. Does a court’s use of dicta from In Interest Of Miller, 

301 Pa. Super. 511, 448 A.2d 25 (1982) to constrain the clear and 

unequivocal language of 23 Pa.C.S.A. § 3304(a)(3) violate 

principles of statutory interpretation?

9. Can a state court decide whether to annul a marriage that 

is void for illegality if it violates a federal statute?

Executrix’s Brief at 5-7.3 

Our standard of review is well settled:

When an appellant challenges a decree entered by the [o]rphans’

[c]ourt, our standard of review “requires that we be deferential to 

the findings of the [o]rphans' [c]ourt.”

[We] must determine whether the record is free from legal error 

and the court's factual findings are supported by the evidence. 

Because the [o]rphans’ [c]ourt sits as the fact-finder, it 

determines the credibility of the witnesses and, on review, we will 

not reverse its credibility determinations absent an abuse of that 

discretion. However, we are not constrained to give the same 

____________________________________________

3 Executrix timely complied with the order of the orphans’ court to file a 

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
J-A01039-18

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deference to any resulting legal conclusions. Where the rules of 

law on which the court relied are palpably wrong or clearly 

inapplicable, we will reverse the court’s decree.

In re Staico, 143 A.3d 983, 987 (Pa. Super. 2016) (citations omitted).

The orphans’ court has thoroughly addressed the claims raised in this 

appeal in its March 7, 2017 opinion filed in conjunction with the March 3, 2017

decree, and its May 26, 2017 Pa.R.A.P. 1925(a) opinion. See Orphans’ Court 

Opinion, 3/7/2017 (rejecting Executrix’s theories (1) that the Decedent and 

Sherpa’s marriage was void pursuant to 23 Pa.C.S. § 3304(a)(3); (2) that the 

marriage should be deemed void ab initio due to the fact it was an allegedly 

illegal contract that violates the federal immigration law codified at 8 U.S.C. § 

1325(c); and (3) that Sherpa should be denied her spousal share due to 

unclean hands). See also Orphans’ Court Opinion, 5/26/2017 (finding (1) 

certain issues raised in Executrix’s concise statement were too vague to 

warrant review; (2) the orphans’ court properly denied Executrix’s request to 

submit affidavits of Sherpa’s mother, daughter, cousin and the Decedent

because the affidavits could not be properly authenticated and the affidavits 

themselves constituted inadmissible hearsay; and (3) the orphans’ court 

properly sustained Sherpa’s objection to the testimony of Lynne Jones, 

Decedent’s cousin, where no hearsay exception applied. 
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Based on our review of the orphans’ court’s opinion, we find the orphans’

court properly rejected Executrix’s claims, and further discussion is 

unnecessary, in all but one respect. Specifically, we address the following 

contention:

[T]he Orphans’ Court passed on ruling whether a marriage should 

be deemed void because it was an illegal agreement to circumvent 

federal immigration law. The Court reasoned that ruling on this 

basis would infringe on the federal judiciary’s exclusive jurisdiction 

over immigration matters. This too was reversible error.

****

It was an error of law for the [o]rphans’ [c]ourt, which had the 

exclusive power to annul marriages in Pennsylvania, to pass on 

whether the agreement to marry in order to circumvent 

immigration laws violated a statute and is therefore an illegal 

agreement that is void ab initio. 

Executrix’s Brief, at 58-59. 

In the orphans’ court, Executrix claimed Decedent and Sherpa had 

committed marriage fraud under 8 U.S.C. § 1325(c), which provides:

Any individual who knowingly enters into a marriage for the 

purpose of evading any provision of the immigration laws shall be 

imprisoned for not more than 5 years, or fined not more than 

$250,000, or both.

8 U.S.C. § 1325(c). 

The orphans’ court rejected this argument, explaining:

In assessing [Executrix’s] argument that Decedent and [Sherpa’s] 

marriage should be deemed void because it was an illegal 

agreement to circumvent federal immigration law, initially we find 
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that [Executrix’s] invocation of 8 U.S.C.A. § 1325(c) as a basis for 

invalidating the marriage between Decedent and [Sherpa] raises 

jurisdictional concerns. Federal immigration law vests the federal 

district courts with exclusive jurisdiction of all determinations 

under 8 U.S.C.A. § 1325(c),4 which is in line with the general 

principle that “[i]mmigration is a matter of exclusive federal 

jurisdiction.” See 8 U.S.C.A. § 1329 (West); Ruiz v. 

Unemployment Comp. Bd. of Review, 911 A.2d 600, 603 (Pa. 

Commw. Ct. 2006).

____________________________________________________

4 It should be noted that if we were to accept [Executrix’s] 

theory that the marriage between Decedent and [Sherpa] 

was nothing more than a contract between them to violate 

U.S.C.A. § 1325(c), then we would thereby in practicality be 

making the determination that Decedent and [Sherpa] did 

in fact violate U.S.C.A. § 1325(c). Further, we also note 

that as a criminal statute, such a finding of culpability under 

U.S.C.A. § 1325(c) would require a higher burden of proof 

of being proven beyond a reasonable doubt. See United 

States v. Islam, 418 F.3d 1125, 1127 (10th Cir. 2005) (On 

appeal the issue was “whether a reasonable jury could have 

found Defendant guilty of marriage fraud beyond a 

reasonable doubt.”).

____________________________________________________

We believe, therefore, that ruling on this basis in the present case 

would infringe on the federal judiciary’s exclusive jurisdiction over 

immigration matters.5

____________________________________________________

5 In this context [Executrix] almost exclusively cites to 

federal cases, the majority of which involve prosecution by 

the United States government. See [Executrix’s] Proposed 

Findings of Fact and Conclusions of Law as to Lakpa 

Sherpa’s Unclean Hands and Void Marriage, pp. 42-44.

____________________________________________________
J-A01039-18

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Orphans’ Court Opinion, 3/7/2017, at 12. We agree with the orphans’ court’s 

analysis.

Contrary to the argument of Executrix, the orphans’ court did not “pass” 

on the issue of whether Decedent and Sherpa committed marriage fraud under 

8 U.S.C. § 1325(c). Rather, the orphans’ court recognized it had no authority 

to question the federal immigration decision to allow Sherpa to enter this 

country as Decedent’s wife. See Orphans’ Court Opinion, 3/7/2017, at 3 

(stating that that Sherpa was admitted as a lawful permanent resident “after 

going through the federal immigration process, which included a review of all 

of the relevant marriage documents”).

The record discloses the following facts.4 In September, 2008, Decedent 

and Sherpa married in Katmandu, Nepal. On November 30, 2008, Decedent

filed a United States Citizenship and Immigration Services (USCIS) form, “I130, Petition for Alien Relative,” for a visa for Sherpa, as his wife. On April

27, 2009, USCIS notified Decedent the petition was approved, and had been 

forwarded to the Department of State’s National Visa Center (NVC) for 

completion of the visa processing steps. Thereafter, Sherpa was determined 

____________________________________________

4 See Exhibits E-32, “Immigration Papers,” and E-33, “Approval Notice.”
J-A01039-18

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to be inadmissible under the Immigration and Nationality Act (INA),

5 but not 

on the grounds that she was not a spouse. Sherpa filed for a waiver of grounds 

of inadmissibility, which was ultimately approved in May, 2013, and in 

January, 2014, she arrived and was admitted to the United States as 

Decedent’s wife for lawful permanent residence. 

Executrix asked the orphans’ court to conclude the marriage of Decedent 

and Sherpa was void as illegal in violation of 8 U.S.C. § 1325(c), regarding 

marriage fraud for the purpose of evading United States immigration laws. 

The orphans’ court properly declined to do so.

Immigration is the subject of federal, not state, law. The INA allows 

citizens to file Form I-130 to petition for immediate relative status on behalf 

of their alien spouses so that the alien spouses may immigrate to the United 

States. See 8 U.S.C. § 1154(a)(1)(A)(i). The term “immediate relatives”

includes the “children, spouses, and parents of a citizen of the United States.”

§ 1151(b)(2)(A)(i). Here, USCIS approved the I-130 petition filed by 

Decedent for Sherpa, as his wife. 

Section 1325(c), upon which Executrix relies, is a federal criminal 

provision, and Section 1329 expressly grants to United States district courts 

____________________________________________

5 See 8 U.S.C. § 1101 et seq. 
J-A01039-18

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jurisdiction of “all causes brought by the United States that arise under the 

provisions of this title” and provides that “[i]t shall be the duty of the United 

States attorney of the proper district to prosecute every such suit when 

brought by the United States.” 8 U.S.C. § 1329. To the extent that Executrix 

seeks to invalidate the Decedent and Sherpa’s marriage on the basis of 

Section 1325(c), she is requesting the orphans’ court to interfere with a 

“binding” decision of USCIS, and indirectly intrude into the jurisdiction of the 

federal court regarding a Section 1325(c) issue. See Ruiz v. Unemployment 

Comp. Bd. Of Review, supra, 911 A.2d at 603 (holding “where the USCIS 

denies or revokes an alien’s work authorization, the determination is binding 

on the states and can be assailed only before a federal agency or in a federal 

court.”).6, 7

____________________________________________

6 We note that “[t]his Court is not bound by decisions of the Commonwealth 

Court[,]” however, we may consider their decisions as persuasive authority 

when appropriate. Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 

2010) (quotation omitted).

7

In Ruiz, the claimant sought unemployment benefits and contended the 

expiration of his green card did not render him legally unavailable for work 

during the period February 18 to March 18, 2006. The claimant argued that 

because he had applied twice to USCIS for renewal of his green card before it 

expired, he should not have been denied benefits available under 

Pennsylvania’s Unemployment Compensation Law. Id., 911 A.2d at 603. The 

Ruiz Court found the USCIS determinations electing not to process two green 

card renewal requests filed by the claimant were “binding.” Id. at 605 
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While we acknowledge the difficult facts of this case and that equity 

principles apply in orphans’ court proceedings, we agree with the orphans’ 

court that “ruling on this basis in the present case would infringe on the federal 

judiciary’s exclusive jurisdiction over immigration matters.” Orphans’ Court 

Opinion, 3/7/2017, at 12. A determination that the marriage of Decedent and 

Sherpa was an illegal contract to circumvent immigration law would 

impermissibly make a finding that is strictly within federal jurisdiction.

Decree affirmed.8

Judge Lazarus joins this memorandum.

Judge Platt files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/18

____________________________________________

(emphasis supplied). In addition, the claimant’s green card automatically 

expired on February 2, 2006. Id. The Ruiz Court concluded the claimant was 

ineligible for unemployment compensation benefits because he “could not 

accept employment, and employers could not hire, recruit, or continue to 

employ him during the period he sought benefits.” Id.

8

In the event of further proceedings, the parties are directed to attach copies 

of the orphans’ court’s March 7, 2017, and May 26, 2017 opinions to this 

memorandum.
J-A01039-18

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Received 4/22/2017 10:46:44 AMY:4044 0/Eriktfeff2 f3ZIFIM 

Filed 4/22/2017 10:46:00 AM Superior Court Eastern District 

1132 EDA 2017 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

In re: ESTATE OF GENE B. ROSMARIN, : Deceased 

: No. 2014-0441 

DECREE 

AND NOW, this 3 c'6 day of March, 2017, upon consideration of Petitioner 

Barbara Nolan's Petition to (1) Strike Lakpa Sherpa's Claim to be Recognized as Decedent's 

Surviving Spouse because the Alleged Marriage between Lakpa Sherpa and Decedent is 

Fraudulent and therefore Void under 23 Pa.C.S.A. § 3304(a)(3)[] and (2) Strike Lakpa Sherpa's 

Claim Against Decedent's Estate Pursuant to 20 Pa.C.S.A. § 2507(3) because Decedent's Last 

Will and Testament was Drafted in Contemplation of his Future Marriage to Lakpa Sherpa, and 

Petitioner's "Order to Show Cause" requesting that the Court strike Respondent Lakpa Sherpa's 

spousal share claim pursuant to the doctrine of unclean hands, and the responses thereto, and 

after an extensive hearing in this matter, it is hereby ORDERED and DECREED that said 

Petition and the relief sought in Petitioner's "Order to Show Cause" are DENIED and 

DISMISSED. Respondent Lakpa Sherpa shall be entitled to pursue her spousal share of 

Decedent's estate. 

N.B. It is your responsibility 

to notify all interested parties 

of the above action. 

BY THE COURT: 

,L21, 

C. THEODORE FRITSCH, JR., ADMN. J. 
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

In re: ESTATE OF GENE B. ROSMARIN, : Deceased : No. 2014-0441 

MEMORANDUM OPINION 

Currently before the Court are two separate requests for relief seeking to strike the 

spousal share claim filed by Respondent Lapka Sherpa (hereinafter sometimes referred to as 

"Respondent") against the estate of the Decedent Gene B. Rosmarin (hereinafter sometimes 

referred to as "Decedent"), which were filed by the Petitioner Barbara Nolan (hereinafter 

sometimes referred to as "Petitioner") on January 30, 2015, and June 22, 2015. Petitioner is the 

ex-wife of the Decedent and the executrix of his estate. Petitioner now seeks to have the Court 

either: (1) annul the marriage between Decedent and his second -wife, Respondent Lakpa Sherpa, 

on the basis of Petitioner's allegations that the marriage between Decedent and Respondent was 

a "sham" in order to perpetrate immigration fraud or (2) strike Respondent's claim for her 

elective share of the Decedent's estate under the doctrine of unclean hands. 

BACKGROUND 

On January 30, 2015, Petitioner filed a document entitled: Petition to (1) Strike Lakpa 

Sherpa's Claim to be Recognized as Decedent's Surviving Spouse because the Alleged Marriage 

between Lakpa Sherpa and Decedent is Fraudulent and therefore Void under 23 Pa.C.S.A. § 

3304(a)(3); and (2) Strike Lakpa Sherpa's Claim Against Decedent's Estate Pursuant to 20 

Pa.C.S.A. § 2507(3) because Decedent's Last Will and Testament was Drafted in Contemplation 

of his Future Marriage to Lakpa Sherpa. On June 22, 2015, Petitioner filed a document titled 

"Order to Show Cause" in which she requested that the Court strike Respondent's spousal share 
claim with prejudice pursuant to her allegation that Respondent is in violation of the doctrine of 

unclean hands. We held an eight -day hearing in this matter, with substantive hearing dates 

spanning from September 29, 2015, through October 26, 2016. On January 30, 2017, the parties 

submitted proposed findings of fact and conclusions of law. In "Petitioner's Proposed Findings 

of Fact and Conclusions of Law as to Lakpa Sherpa's Unclean Hands and Void Marriage," 

Petitioner indicated that she was withdrawing her attempt to strike Respondent's spousal share 

claim pursuant to 20 Pa.C.S.A. § 2507(3). 

Decedent Gene B. Rosmarin died on June 10, 2014. Decedent died with a Last Will and 

Testament dated April 9, 1998, which appointed his ex-wife, Petitioner Barbara Nolan, executrix 

of his estate and left her the entirety of the rest, residue, and remainder of his estate. See 

Decedent's Last Will and Testament dated April 9, 1998. Decedent's Last Will and Testament 

was drafted after his divorce from Petitioner, the Petitioner and Decedent having been divorced 

in 1996. 

After Decedent's divorce from Petitioner, Decedent engaged in a long-term relationship 

with a Nepalese woman, Chopka Sherpa. N.T. 10/26/16, pp. 118-119; N.T. 9/28/16, p. 144. 

Decedent and Chopka Sherpa remained in a relationship for several years, until eventually 

Chopka no longer wished to pursue a romantic relationship with Decedent. N.T. 9/28/16, pp. 

148-154. In 2002, Decedent met Respondent Lakpa Sherpa while he was on a trip to Nepal with 

Chopka. N.T. 7/15/16, p. 4. From the time they met, Respondent and Decedent stayed in touch, 

with Chopka primarily helping to facilitate their communications. N.T. 7/15/16, pp. 9-10. 

Testimony was elicited that Decedent often expressed feelings of being lonely and depressed, 

and he was in search of companionship. N.T. 9/28/16, pp. 53-54, 86, 168-169; N.T. 9/29/15, p. 

126, 161-162. Decedent wanted the comfort and security that he associated with marriage. N.T. 

2 
9/29/15, p. 126. Eventually, Decedent expressed to his mother and his sister his desire to 'marry 

Respondent. N.T. 9/29/15, pp. 126, 161-162. However, Decedent's children were not made 

aware of Respondent, nor Decedent's intention to remarry. N.T. 9/28/16, pp. 126-127, N.T. 

9/29/15, pp. 211, 219-220. In describing the progression of her relationship with Decedent, 

Respondent stated: "he loved me and I had small kids[,] he was very good to the kids and he 

loves me and cared for me[,] [s]o I decided to get married to him." N.T. 7/15/16, pp. 10-11. On 

September 29, 2008, while Decedent was in Nepal, Respondent and Decedent entered into a 

marriage. N.T. 7/15/16, p. 11. Respondent and Decedent "[f]irst [] got married traditionally in 

[Nepalese] culture and then after that [] went to the government office and got [their] marriage 

registered." N.T. 7/15/16, p. 11. A copy of Decedent and Respondent's marriage certificate was 

entered as an exhibit at trial. N.T. 5/6/16, pp. 27-28. 

On January 22, 2014, after going through the federal immigration process, which 

included a review of all of the relevant marriage documents, Respondent entered the United 

States as a lawful permanent resident. N.T. 7/15/16, pp. 44-46. Respondent currently maintains 

her status as a lawful permanent resident. N.T. 7/15/16, pp. 44-46. While living in the United 

States during the time Decedent was alive, Respondent did not reside with Decedent on a 

continual basis, and would spend a majority of the week in New York, where she was able to 

find work. N.T. 5/6/16, pp. 31-47; N.T. 7/15/16, p. 47. However, Decedent did hold 

Respondent out to be his wife, naming her as a beneficiary for his work benefits, and expressing 

his desire to be with her to his doctor. N.T. 7/15/16, pp. 66-69; see Exhibits E-33 and E-35. 

Although Decedent's tax preparer stated Decedent had once mentioned the prospect of divorce to 

him, from the time of Respondent's arrival, neither Decedent nor Respondent took any 

affirmative steps towards obtaining a divorce. N.T. 9/29/15, pp. 19, 25. 

3 
On May 10, 2014, Decedent suffered a serious accident that resulted in his hospitalization 

and his placement on life support. N.T. 7/14/16, p. 22, N.T. 9/29/15, pp. 219-220. Petitioner and 

Decedent and Petitioner's children claim they were not aware of Respondent's marriage to 

Decedent until her involvement at the hospital following Decedent's accident. N.T. 9/28/16, pp. 

126-127, N.T. 9/29/15, pp. 211, 219-220. However, Decedent had a somewhat estranged and 

distant relationship in recent years with his children and Petitioner. N.T. 9/28/16, pp. 147-159; 

N.T. 7/13/16, pp. 97-98; N.T. 10/26/16, p. 119. Ultimately, the hospital recognized Respondent 

as the legal wife of Decedent, and as such granted her decision -making authority. N.T. 7/15/16, 

p. 87, see Exhibit E-35. On June 10, 2014, Decedent passed away. 

On August 8, 2014, Petitioner was granted Letters Testamentary in regard to Decedent's 

estate. See August 8, 2014, Decision and Decree issued by the Register of Wills, Docket No. 

2014-01469. Respondent filed her spousal election against Decedent's Will on November 18, 

2014. Thereafter, Petitioner initiated the present attempts to disallow Respondent's spousal 

share claim. 

DISCUSSION 

We will discuss below both of Petitioner's theories of relief for striking Respondent's 

spousal share claim; to wit, the marriage being void pursuant to 23 Pa.C.S.A. § 3304(a)(3) and 

Respondent's conduct being in violation of the doctrine of unclean hands. 

At the outset, it is necessary to address the meaning of a marriage under Pennsylvania 

law, and whether what transpired between Decedent and Respondent can be recognized as a 

prima facie marriage. "Marriage in Pennsylvania is a civil contract by which a man and a 

woman take each other for husband and wife." In re Manfredi's Estate, 399 Pa. 285, 291, 159 

A.2d 697, 700 (1960). "The validity of a marriage is to be determined by the law of the place 

4 
where it was celebrated; if valid there, it is valid everywhere."1 Phillips v. Gregg, 1840 WL 

3833, at *I (Pa. 1840). In the present case, the record reflects that Decedent and Respondent 

entered into a marriage in Nepal, and their marriage was recognized as valid by the Nepalese 

government, as evidenced by their marriage certificate. N.T. 5/6/16, pp. 26-28; see Exhibit E-16. 

The record establishes that Decedent and Respondent received a marriage certificate from the 

Nepalese government and had a ceremonial wedding pursuant to Nepalese and Buddhist 

customs.2 N.T. 5/6/16, pp. 26-28; N.T. 7/15/16, p. 11; see Exhibit E-16. Accordingly, based 

upon the previously stated principles and the evidence of record, we find that a prima facie 

marriage between Decedent and Respondent has been established. We now must look at the 

ramifications of this determination. 

Pursuant to 20 Pa. Stat. and Cons. Stat. Ann. § 2507(3): 

Wills shall be modified upon the occurrence of any of the following circumstances, 

among others: 

(3) Marriage. --If the testator marries after making a will, the surviving spouse 

shall receive the share of the estate to which he would have been entitled had the 

testator died intestate, unless the will shall give him a greater share or unless it 

appears from the will that the will was made in contemplation of marriage to the 

surviving spouse. 

We do recognize that there is an exception to this general principle when a foreign marriage is repugnant to the 

public policy of the Commonwealth of Pennsylvania. See Corn, v. Custer, 145 Pa. Super. 535, 540, 21 A.2d 524, 

526 (1941) ("An exception to the general rule, however, is ordinarily made in the case of marriages repugnant to the 

public policy of the domicile of the parties, in respect of polygamy, incest, or miscegenation, or otherwise contrary 

to its positive laws."). 

Pennsylvania now only recognizes ceremonial marriages for any marriage entered into in the Commonwealth after 

January 1, 2005, and "[a] ceremonial marriage is a wedding or marriage performed by a religious or civil authority 

with the usual or customary ceremony or formalities." In re Manfredi's Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 

(1960); see Elk Mountain Ski Resort, Inc. v. Workers' Comp. Appeal Bd., 114 A.3d 27, 32-33 (Pa. Commw. Ct. 

2015) ("The legislature [] amended Section 1103 of the Marriage Law, 23 Pa.C.S. § 1103, effective January 24, 

2005, statutorily abolishing common law marriages in Pennsylvania. Section 1103 provides: 'No common-law 

marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any 

common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid." (quoting 23 Pa.C.S. § 

1103)); see also In re Manfredi's Estate, 399 Pa. 285, 291, 159 A.2d 697, 700 (1960) ("There [used to be] two kinds 

of marriage: (1) ceremonial; and (2) common law."). 

5 
20 Pa.-Stat. and Cons. Stat. Ann. § 2507(3) (West). Under the laws of intestate succession, as set 

forth under 20 Pa. Stat. and Cons. Stat. Ann. § 2102(4): 

The intestate share of a decedent's surviving spouse is: 

(4) If there are surviving issue of the decedent one or more of whom are not issue 

of the surviving spouse, one-half of the intestate estate. 

20 Pa. Stat. and Cons. Stat. Ann. § 2102(4) (West). Further, under 20 Pa. Stat. and Cons. Stat. 

Ann. § 2203: 

(a) Property subject to election. --Except as provided in subsection (c), when a married 

person domiciled in this Commonwealth dies, his surviving spouse has a right to an 

elective share of one-third of the following property: 

(I) Property passing from the decedent by will or intestacy. 

(2) Income or use for the remaining life of the spouse of property conveyed by the 

decedent during the marriage to the extent that the decedent at the time of his 

death had the use of the property or an interest in or power to withdraw the 

income thereof. 

(3) Property conveyed by the decedent during his lifetime to the extent that the 

decedent at the time of his death had a power to revoke the conveyance or to 

consume, invade or dispose of the principal for his own benefit. 

(4) Property conveyed by the decedent during the marriage to himself and another 

or others with right of survivorship to the extent of any interest in the property 

that the decedent had the power at the time of his death unilaterally to convey 

absolutely or in fee. 

(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the 

extent it was purchased by the decedent during the marriage and the decedent was 

receiving annuity payments therefrom at the time of his death. 

(6) Property conveyed by the decedent during the marriage and within one year of 

his death to the extent that the aggregate amount so conveyed to each donee 

exceeds $3,000, valued at the time of conveyance. 

In construing this subsection, a power in the decedent to withdraw income or principal, or 

a power in any person whose interest is not adverse to the decedent to distribute to or use 

for the benefit of the decedent any income or principal, shall be deemed to be a power in 

the decedent to withdraw so much of the income or principal as is subject to such power, 

even though such income or principal may be distributed only for support or other 

particular purpose or only in limited periodic amounts. 

(b) Property not subject to election. --The provisions of subsection (a) shall not be 

construed to include any of the following except to the extent that they pass as part of the 

decedent's estate to his personal representative, heirs, legatees or devisees: 

(1) Any conveyance made with the express consent or joinder of the surviving 

spouse. 

6 
(2) The proceeds of insurance, including accidental death benefits, on the life of '- 

the decedent. 

(3) Interests under any broad -based nondiscriminatory pension, profit sharing, 

stock bonus, deferred compensation, disability, death benefit or other such plan 

established by an employer for the benefit of its employees and their 

beneficiaries. 

(4) Property passing by the decedent's exercise or nonexercise of any power of 

appointment given by someone other than the decedent. 

(e) Nonapplicability.--Pursuant to 23 Pa.C.S. § 3323(d.1) (relating to decree of court), 

this section shall not apply in the event a married person domiciled in this 

Commonwealth dies during the course of divorce proceedings, no decree of divorce has 

been entered pursuant to 23 Pa.C.S. § 3323 and grounds have been established as 

provided in 23 Pa.C.S. § 3323(g). 

20 Pa. Stat. and Cons. Stat. Ann. § 2203 (West). 

In that Decedent died testate with a Last Will and Testament which did not mention 

Respondent, if we were to find that Respondent entered into a valid marriage with Decedent and 

that Respondent's conduct has not barred her from relief under the doctrine of unclean hands, 

then Respondent would be entitled to either one-half of Decedent's estate pursuant to 20 Pa. Stat. 

and Cons. Stat. Ann. § 2507(3) and 20 Pa. Stat. and Cons. Stat. Ann. § 2102(4), or her elective 

share pursuant to 20 Pa. Stat. and Cons. Stat. Ann. § 2203. 

I) Void Marriage 

Petitioner urges us to find the marriage between Decedent and Respondent void pursuant 

to 23 Pa.C.S.A. § 3304(a)(3), and, as set forth in Petitioner's proposed conclusions of law, 

additionally asserts the theory that since the marriage between Decedent and Respondent is 

alleged to have been entered into for the purpose of contravening federal immigration law, than it 

must be deemed void ab initio. We will address each of the theories Petitioner asserts as a basis 

for finding the marriage between Decedent and Respondent void. 

a. 23 Pa.C.S.A. 4 3304(0(3) 

Under 23 Pa. Stat. and Cons. Stat. Ann. § 3304(a)(3): 

7 
(a) General rule. --Where there has been no confirmation by cohabitation following the 

removal of an impediment, the supposed or alleged marriage of a person shall be deemed 

void in the following cases: 

(3) Where either party to such marriage was incapable of consenting by reason of 

insanity or serious mental disorder or otherwise lacked capacity to consent or did 

not intend to consent to the marriage. 

23 Pa. Stat. and Cons. Stat. Ann. § 3304(a)(3) (West). "There is the presumption of sanity and 

the presumption of the legality of the marriage, which presumptions can be overcome only by 

presentation of clear evidence that defendant was not capable at the time of the marriage 

ceremony to understand the nature of the marriage contract and its consequent effect." DeMedio v. DeMedio, 215 Pa. Super. 255, 269, 257 A.2d 290, 298 (1969). "The burden of overcoming 

such presumption is upon the party attacking the validity of the marriage." Id. (internal citation 

omitted). "The general rule is that a marriage valid where contracted is valid everywhere and 

this rule has long been upheld in this state." Com. v. Custer, 145 Pa. Super. 535, 539, 21 A.2d 

524, 526 (1941). Under 23 Pa. Stat. and Cons. Stat. Ann. § 3304(a)(3), "a marriage [is] void 

only where one of the parties lacked capacity to consent or did not intend to assent to the 

marriage."3 In Interest of Miller, 301 Pa. Super. 511, 524-25, 448 A.2d 25, 31-32 (1982) 

(internal citations and quotation marks omitted)." "The reason or motive underlying the decision 

to marry is not relevant to a finding of the [i]ntention to marry." In re Gower's Estate, 445 Pa. 

554, 557, 284 A.2d 742, 744 (1971). 

In In Interest of Miller, 301 Pa. Super. 511, 524-25, 448 A.2d 25, 31-32 (1982), the 

Superior Court shed light on the high bar for voiding a marriage pursuant to 23 Pa. Stat. and 

Cons. Stat. Ann. § 3304(a)(3). The Superior Court held that where "[t]he record here 

3 Although in In Interest of Miller, 301 Pa. Super. 511, 524-25, 448 A.2d 25, 31-32 (1982) the Superior Court of 

Pennsylvania was specifically referencing the former statute on the issue, 23 P.S. § 204, it should be noted that 23 

23 P.S. § 204(a)(3) and 23 Pa. Stat, and Cons. Stat. Ann. § 3304(a)(3) are essentially identical. See Jeffco v. Jeffco, 

No. 402 WDA 2013, 2014 WL 10988175, at *5 (Pa. Super. Ct. Jan. 14, 2014) ("While Miller cited to former section 

205(b) of the Divorce Code, the present section 3305 contains similar language."). 

8 
establishe[d] . . . [the couple's] intention to many[,] [t]he fact- . that [the couple's] motive was 

to avoid prosecution could not render invalid their otherwise valid . . . marriage." In Interest of 

Miller, 301 Pa. Super. 511, 521, 448 A.2d 25, 29-30 (1982) (emphasis original). In establishing 

that an improper motive will not be used as grounds to collaterally invalidate an otherwise proper 

marriage, the Superior Court stated that "[t]he lower court's finding that [the husband's] sole 

purpose was to practice a fraud upon this Court and upon [the wife] does not bring the marriage 

within [what is now Section 3304(a)(3)1" Id. The Superior Court emphasized that 23 Pa. Stat. 

and Cons. Stat. Ann. § 3304(a)(3), "makes a marriage void only where one of the parties 'lacked 

capacity to consent or did not intend to [consent]' to the marriage[, and] [s]ince [] neither party 

lacked capacity and both intended to assent, the section [was] inapplicable." Id. 

In the instant case, the record does not support a finding that the marriage between 

Decedent and Respondent is void pursuant to 23 Pa. Stat. and Cons. Stat. Ann. § 3304(a)(3). 

The record is completely devoid of any evidence speaking to either Decedent's or Respondent's 

mental capacity or status at the time of their marriage in Nepal. To the contrary, there is 

evidence in the record indicating that both Decedent and Respondent had the present intent and 

capacity to consent to their marriage. Decedent expressed a desire to be married to Respondent. 

See N.T. 9/29/15, p. 126. Prior to marrying Respondent in Nepal, Decedent informed his mother 

that he intended to marry Respondent, and also told his sister about Respondent. See N.T. 

9/29/15, pp. 130-131, 161-162. Respondent testified regarding her intention to marry Decedent, 

and her reasons for doing so. See N.T. 7/15/16, pp. 10-11. 

Further, given the general rule that a "marriage valid where contracted is valid 

everywhere," and given the fact that Decedent and Respondent entered into a valid marriage 

under Nepalese law, Respondent and Decedent enjoy "the presumption of sanity and the 

9 
presumption Elf the legality -of the marriage." Com. v. Custer, 145 Pa. Super. 535;539, 21-A.2d 

524, 526 (1941); DeMedio v. DeMedio, 215 Pa. Super. 255, 269, 257 A.2d 290, 298 (1969). 

These presumptions bestowed upon Decedent and Respondent with respect to their marriage 

"can be overcome only by presentation of clear evidence that [they were] not capable at the time 

of the marriage ceremony to understand the nature of the marriage contract and its consequent 

effect," and the burden of establishing such evidence "is upon the party attacking the validity of 

the marriage." DeMedio v. DeMedio, 215 Pa. Super. 255, 269, 257 A.2d 290, 298 (1969). In 

this case, the record is devoid of any medical evidence that would suggest that either Decedent or 

Respondent was incapable of consenting to and understanding the consequences of their 

marriage. Further, as demonstrated in In Interest of Miller, even if Decedent and Respondent did 

enter into their marriage for an allegedly fraudulent purpose, as asserted by Petitioner, the fact 

that the "sole purpose was to practice a fraud . . . does not bring the marriage within [what is now 

Section 3304(a)(3)1" In Interest of Miller, 301 Pa. Super. 511, 521, 448 A.2d 25, 29-30 (1982). 

Just as in In Interest of Miller, the record in this case clearly establishes Decedent's and 

Respondent's intention to marry, and even if their motive in getting married was questionable, 

their motive alone cannot invalidate an otherwise valid marriage under 23 Pa. Stat. and Cons. 

Stat. Ann. § 3304(a)(3). 

Accordingly, we find Petitioner's argument that the marriage between Decedent and 

Respondent should be deemed void pursuant to 23 Pa. Stat. and Cons. Stat. Ann. § 3304(a)(3) 

lacks merit . b. Illegal Contract 

In Petitioner's Proposed Findings of Fact and Conclusions of Law as to Lakpa Sherpa's 

Unclean Hands and Void Marriage, Petitioner raises the additional argument that the marriage 

10 
between Decedent and Respondent should be deemed void ab initio due to the fact that it was 

allegedly an illegal agreement which violates a provision of a statute, namely the federal 

immigration law codified at 8 U.S.C.A. § 1325(c). 

"In Pennsylvania, marriage is a civil contract made between parties with the capacity so 

to contract." In re Garges' Estate, 474 Pa. 237, 240, 378 A.2d 307, 308 (1977). "Proving the 

existence of a marriage contract, except where it is entered into ceremonially, is difficult, 

because it is likely to arise in an informal setting, where records are not kept." In re Garges' 

Estate, 474 Pa. 237, 240-41, 378 A.2d 307, 309 (1977). 

There is a "general rule that an agreement between parties which violates a provision of a 

statute, or which cannot be effectively performed without violating said statute, is illegal, 

unenforceable, and void ab initio." Gramby v. Cobb, 282 Pa. Super. 183, 188, 422 A.2d 889, 

892 (1980). It has been elaborated: 

Where a contract is found to be against public policy it cannot, under any circumstances, 

be made the basis of a cause of action. The law when appealed to will have nothing to do 

with it, but will leave the parties just in the condition in which it finds them. If they have 

fully executed their unlawful contract, the law will not disturb them in the possession of 

what each has acquired under it. If one has executed in whole or in part, the law turns a 

deaf ear when he pleads for its aid to compel the other to do as much. 

Id. (internal citations omitted). 

Under federal law, it is a crime to enter into a marriage for the purpose of evading 

federal immigration laws, with 8 U.S.C.A. § 1325(c) stating: 

(c) Marriage fraud 

Any individual who knowingly enters into a marriage for the purpose of evading any 

provision of the immigration laws shall be imprisoned for not more than 5 years, or fined 

not more than $250,000, or both. 

8 U.S.C.A. § 1325(c) (West). However, "kimmigration is a matter of exclusive federal 

jurisdiction." Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600, 603 (Pa. Commw. Ct. 

11 
2006). With regard to judicial determinations under 8 U.S.C.A. § 1325(c), federal immigration 

law establishes: 

The district courts of the United States shall have jurisdiction of all causes, civil and 

criminal, brought by the United States that arise under the provisions of this subchapter. 

It shall be the duty of the United States attorney of the proper district to prosecute every 

such suit when brought by the United States. . . . 8 U.S.C.A. § 1329 (West). 

In assessing Petitioner's argument that Decedent and Respondent's marriage should be 

deemed void because it was an illegal agreement to circumvent federal immigration law, initially 

we find that Petitioner's invocation of 8 U.S.C.A. § 1325(c) as a basis for invalidating the 

marriage between Decedent and Respondent raises jurisdictional concerns. Federal immigration 

law vests the federal district courts with exclusive jurisdiction of all determinations under 8 

U.S.C.A. § 1325(c),4 which is in line with the general principle that "[i]mmigration is a matter of 

exclusive federal jurisdiction." See 8 U.S.C.A. § 1329 (West); Ruiz v. Unemployment Comp. Bd 

of Review, 911 A.2d 600, 603 (Pa. Commw. Ct. 2006). We believe, therefore, that ruling on this 

basis in the present case would infringe on the federal judiciary's exclusive jurisdiction over 

immigration matters.5 

Further, we see fundamental flaws in Petitioner's illegal contract argument. First, we 

find that the record does not support the theory that the marriage was entered into for the purpose 

of circumventing federal immigration law. Additionally, the principle cited by Petitioner, i.e. 

It should be noted that if we were to accept Petitioner's theory that the marriage between Decedent and Respondent was nothing more than a contract between them to violate U.S.C.A. § 1325(c), then we would thereby in practicality 

be making the determination that Decedent and Respondent did in fact violate U.S.C.A. § 1325(c). Further, we also 

note that as a criminal statute, such a finding of culpability under U.S.C.A. § 1325(c) would require the higher 

burden of proof of being proven beyond a reasonable doubt. See United States v. Islam, 418 F.3d 1125, 1127 (10th 

Cir. 2005) (On appeal the issue was "whether a reasonable jury could have found Defendant guilty of marriage fraud 

beyond a reasonable doubt."). 

In this context Petitioner almost exclusively cites to federal cases, the majority of which involve prosecution by the 

United States government. See Petitioner's Proposed Findings of Fact and Conclusions of Law as to Lakpa Sherpa's 

Unclean Hands and Void Marriage, pp. 42-44. 

12 
"an agreement between parties which violates a provision of a statute, or which cannot be 

effectively performed without violating said statute, is illegal, unenforceable, and void ab initio," 

naturally applies when an agreement itself violates a statute or performance of such would cause 

violation of a statute. Gramby v. Cobb, 282 Pa. Super. 183, 188, 422 A.2d 889, 892 (1980). 

However, to accept Petitioner's theory of relief within the context of marriage, we would have to 

accept the argument that the agreement to marry, i.e. an agreement between two consenting 

adults to take one another as each other's spouse, can in itself be a violation of a statute. We 

would not dispute that an agreement between two people to become married solely in order to 

circumvent federal immigration law could be held void ab initio as an illegal contract and would 

not be enforceable; however, this must be distinguished from the agreement to marry itself. 

Here, we are not only aided by the fact that the marriage between Decedent and Respondent was 

"entered into ceremonially," but the record also supports a finding that there was an agreement 

between Decedent and Respondent to take one another as each other's spouse, an agreement 

which in itself cannot be said to amount to a violation of any statute or established law. 6 In re 

Gargesi Estate, 474 Pa. 237, 240-41, 378 A.2d 307, 309 (1977). 

Based on the totality of the foregoing, we do not find Petitioner's argument, that the 

marriage between Decedent and Respondent should be deemed void ab initio due to the fact that 

it was allegedly an illegal agreement, to be a valid basis to deny recognition of the marriage. 

II) Unclean Hands 

Petitioner raises two arguments in asserting that Respondent should be denied her spousal 

share due to the doctrine of unclean hands: (1) Respondent's hands are unclean due to her 

allegedly committing marriage fraud and (2) Respondent's hands are unclean due to her making 

6 We further note that the record does not establish the existence of any agreement between Decedent and 

Respondent to enter into their marriage solely for the purpose of aiding Respondent in evading immigration laws. 

13 
"willful and 'material representations regarding the bona fides of her alleged marriage to the 

Decedent, which clearly shows she is acting deceitfully regarding the matter in controversy." 

"In the exercise of the limited jurisdiction conferred on it by statute, it is plain that the 

Orphans' Court must apply the rules and principles of equity[,] [t]hus, the familiar equity maxim 

`he who comes into a court of equity must come with clean hands' applies to matters within the 

Orphans' Court's jurisdiction." In re Estate of Pedrick, 505 Pa. 530, 543, 482 A.2d 215, 222 

(1984) (internal citations omitted). "The maxim itself is derived from the unwillingness of a 

court to give relief to a suitor who has so conducted himself as to shock the moral sensibilities of 

the judge, and it has nothing to do with the rights or liabilities of the parties." Id. (internal 

quotation marks omitted). "[T]he clean hands doctrine does not bar relief to a party merely 

because his conduct in general has been shown not to be blameless; the doctrine only applies 

where the wrongdoing directly affects the relationship subsisting between the parties and is 

directly connected with the matter in controversy." Id "It does not apply to collateral matters 

not directly affecting the equitable relations which exist between the parties." Id Further, the 

unclean hands doctrine "necessarily gives wide range to the equity court's use of discretion," and 

the court "is free to refuse to apply the doctrine if a consideration of the entire record convinces 

[it] that an inequitable result will be reached." Shapiro v. Shapiro, 415 Pa. 503, 507, 204 A.2d 

266, 268 (1964). 

We find Petitioner's assertion that Respondent should be found to have unclean hands 

due to the allegations of her committing marriage fraud to lack merit. In addition to the reasons 

discussed above for not finding the marriage void, we do not believe there is sufficient evidence 

to invalidate the marriage between Decedent and Respondent based upon Petitioner's allegations 

of immigration fraud. Although the record indicates that the marriage in question was not 

14 
traditional in many respects, the retard is replete with evidence that there undisputedly was a 

marriage between Decedent and Respondent within the eyes of the law. There was testimony 

that Decedent wanted to marry Respondent, and wanted to do so for companionship. N.T. 

9/28/16, pp. 53-54, 86, 168-169; N.T. 9/29/15, p. 126, 161-162. There was also testimony that 

Respondent wanted to marry Decedent for stability, support, and companionship. N.T. 7/15/16, 

pp. 10-11. Further, there was no testimony establishing an agreement between Decedent and 

Respondent to marry for the sole purpose of helping Respondent circumvent federal immigration 

laws. We also note that there was no evidence presented establishing that a federal agency ever 

concluded that the marriage between Decedent and Respondent ran afoul of federal immigration 

law. Accordingly, we do not believe it would be an appropriate use of our discretion to deny 

Respondent's spousal share claim due to allegations of marriage fraud in light of the totality of 

the record. 

Petitioner also asserts Respondent's conduct throughout the course of this litigation as a 

basis to deny Respondent's spousal share claim under the doctrine of unclean hands. In support 

of this position, Petitioner largely restates her overarching theory of the case and asserts 

allegations of misconduct, in many instances without citing to the record to substantiate said 

allegations. See Petitioner's Proposed Findings of Fact and Conclusions, pp. 51-54. She further 

urges the Court to infer nefarious intent simply due to the unconventional nature of the marriage. 

See Petitioner's Proposed Findings of Fact and Conclusions, pp. 51-54. While the Court does 

recognize that Respondent was by no means a flawless party throughout the course of this 

litigation, "[t]he clean hands doctrine [] does not require that a [party] be denied equitable relief 

merely because his conduct has been shown not to have been blameless." Stauffer v. Stauffer, 

465 Pa. 558, 575, 351 A.2d 236, 244 (1976). We find that Respondent's conduct throughout the 

15 
course of this case does not rise to a level which bars Respondent on equitable grounds from 

exercising her right to her statutorily entitled spousal share. 

CONCLUSION 

Based upon the reasons stated herein, we find that Petitioner's request to (1) annul the 

marriage between Decedent and Respondent on the basis of Petitioner's allegations that the 

marriage between Decedent and Respondent was a "sham" in order to perpetrate immigration fraud 

or (2) strike Respondent's claim for her elective share of the Decedent's estate via the doctrine of 

unclean hands, should be denied. Accordingly, we issue the attached Decree denying and 

dismissing Petitioner's Petition to (1) Strike Lakpa Sherpa's Claim to be Recognized as Decedent's 

Surviving Spouse because the Alleged Marriage between Lakpa Sherpa and Decedent is 

Fraudulent and therefore Void under 23 Pa.C.S.A. § 3304(a)(3)[,] and (2) Strike Lakpa Sherpa's 

Claim Against Decedent's Estate Pursuant to 20 Pa.C.S.A. § 2507(3) because Decedent's Last 

Will and Testament was Drafted in Contemplation f his Future Marriage to Lakpa Sherpa; and 

Petitioner's "Order to Show Cause" requesting that the Court strike Respondent's spousal share 

claim with prejudice pursuant to her allegation that Respondent is in violation of the doctrine of 

unclean hands. 

BY THE COURT: 

, 

jiCA- 73, 

Date C. THEODORE FRITS CH, X-ADMN. J. 

N.B. it is your responsibility 

to notify all interested parties 

of the above action. 

16 
Circulated 04/10/2018 02:27 PM 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

ORPHANS' COURT DIVISION 

In re: ESTA'T'E OF GENE B. ROSMARIN, : Deceased : No. 2014-0441 

OPINION 

Appellant, Barbara Nolan, Executrix of the Estate of Gene Barclay Rosmarin, (hereinafter, 

"Appellant"), has filed an appeal to the Superior Court of Pennsylvania from this Court's March 

3, 2017 Decree denying Appellant's Petition to (1) Strike Lakpa Sherpa's (hereinafter "Appellee") 

Claim to be Recognized as Gene B. Rosamarin's (hereinafter "Decedent") Surviving Spouse 

pursuant to 23 Pa.C.S.A. § 3304(a)(3); (2) Strike Appellee's claim against Decedent's estate 

pursuant to 20 Pa.C.S.A. § 2507(3), and (3) Appellant's "Order to Show Cause" requesting that 

the Court strike Appellee's spousal share claim pursuant to the doctrine of unclean hands. This 

Opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 

SUBSEQUENT PROCEDURAL BACKGROUND 

On March 7, 2017, this Court issued a Decree and Memorandum Opinion that denied 

Appellant's Petition to (1) annul the marriage between Decedent and his second -wife, Appellee 

Lakpa Sherpa, (2) strike Appellee's claim for her elective share of the Decedent's estate under the 

doctrine of unclean hands, and (3) Appellant's "Order to Show Cause" requesting that the Court 

strike Appellee's spousal share claim pursuant to the doctrine of unclean hands. On March 23, 

2017, Appellant filed a post -trial motion pursuant to Pa. R.C.P. 227.1 requesting this Court 

reconsider our ruling denying Appellant's "Order to Show Cause." By Order issued March 29, 

2017, we denied Appellant's post -trial motion. 
CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL 

Appellant filed a statement of matters complained of on appeal (hereinafter "concise 

statement" or "Rule 1925(b) Statement") on or about April 24, 2017, approximately twenty-four 

days after filing his Notice of Appeal and twenty days after our April 3, 2017 Order directing her 

to file and serve the concise statement. 

Preliminarily, we observe that an appellant may waive all issues complained of on appeal, 

when an appellant files a concise statement containing a voluminous number of lengthy issues in 

an effort to overwhelm and confuse the trial court. Tucker v. R.M. Tours, 2007 PA Super 352, 

939 A.2d 343 (2007), affd 602 Pa. 147, 977 A.2d 1170 (2009). Such a voluminous concise 

statement may indicate a deliberate attempt to circumvent the meaning and purpose of 

Pennsylvania Rule of Appellate Procedure 1925 and to overwhelm and frustrate the court system. 

Jiricko v, Geico Ins. Co., 2008 PA Super 63, 947 A.2d 206 (2008). 

We further recognize that "[t]he extreme action of dismissal should be imposed by an 

appellate court sparingly, and clearly would be inappropriate when there has been substantial 

compliance with the rules and when the party [moving for quashal of the appeal] has suffered no 

prejudice." In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. Ct. 2009) quoting Stout v. Universal 

Underwriters Ins. Co., 421 A.2d 1047, 1049 (Pa. 1980)). 

In Appellant's concise statement, she raises twenty-seven (27) issues in a case involving 

the basic questions of whether a marriage should be deemed valid and whether the surviving 

spouse should be permitted to take a spousal share of a decedent's estate. The great majority of 

the issues raised appear to address, seriatim, virtually every conclusion that we reached in our 

sixteen -page Memorandum Opinion. As such, we perceive that Appellant's concise statement is 

overly broad and all encompassing, and suggest that this appeal could be dismissed due to the 

2 
voluminous nature of the statement itself. 

Assuming arguendo that Appellant's concise statement does not warrant dismissal due to 

its voluminous nature, we will address Appellant's allegations of error as stated in her concise 

statement, which we set forth verbatim, as follows: 

1. The Court of Common Pleas of Bucks County, Orphans' Court, erred in its legal 

conclusion that "[u]nder 23 Pa. C.S.A. §3304(a)(3), 'a marriage [is] void only 

where one of the parties lacked capacity to consent or did not intend to assent to the 

marriage.' In Interest of Miller, 301 Pa. Super. 511, 524-25,448 A. 2d 25, 31-32 

(1982)(internal citations and quotations omitted)[]", which was entered in 

derogation of well -settled principles of statutory construction and was based on 

improper application of statutory interpretation and the plain meaning of 23 Pa. 

C.S.A. §3304(a)(3). 

2. The Orphans' Court erred in its legal conclusion that 23 Pa. C.S.A. § 3304(a)(3) 

does not function to annul marriage undertaken solely to defraud United/ States 

Citizenship and Immigration Services (UUSCIS) based upon lack of capacity to 

consent to a marriage void for illegality. 

3. The Orphans' Court erred in its reliance on In Interest of Miller, 301 Pa. Super. 

511, 448 A. 2d 25 (1982) to modify the plain language of 23 Pa. C.S.A. 

§3304(a)(3), the holding of which related to the interpretation of a prior statute 

concerning voidable marriages and not a void marriage. 

4. The Orphans' Court erred in its legal conclusion that In Interest of Miller, 301 Pa, 

Super. 511, 448 A. 2d 25 (1982), stands for the proposition that a marriage entered 

into to defraud United Sates Citizenship and Immigration Services (USCIS) does 

not render invalid a marriage that followed the formal trappings of a marriage 

contract but could not constitute a valid marriage by reason of the illegal purpose 

of the marriage contract. 

5. The Orphans' Court erred in its legal conclusion that a party can consent to enter 

into a contract of marriage for an unlawful purpose. 

6. The Orphans' Court erred in its legal conclusion that "Even if Decedent and 

Respondent did enter into their marriage for an allegedly fraudulent purpose, as 

asserted by Petitioner, the fact that the 'sole purpose was to practice a fraud...does 

not bring the marriage within [what is now Section 3304(a)(3).Th In Interest of 

Miller, 301 Pa. Super. 511, 521, 448 A. 2d 25, 29-30 (1982)." 

7. The Orphans' Court erred in its legal conclusion that "even if their motive in getting 

married was questionable, their motive alone cannot invalidate an otherwise valid 

marriage under 263 Pa. Stat. and Cons. Stat. ann. § 3304(a)(3)." 

3 
8. The Orphans' Court committed reversible error when it went against the weight of 

the evidence to conclude that the record does not support the theory that the 

marriage was entered into for the purpose of circumventing federal immigration 

law when an IRS -enrolled agent testified Decedent admitted the marriage was 

undertaken solely to defraud USCIS. 

9. The Orphans' Court erred in its legal conclusion the marriage between Decedent 

and Respondent should not be deemed void ab initio despite the fact that the 

marriage was an illegal agreement, reasoning an illegal agreement to marry is not 

a valid basis to deny recognition of the marriage. 

10. The Orphans' Court erred in ruling that it could not render a decision on whether the 

marriage was void because it was an illegal agreement undertaken to circumvent 

federal immigration law because such a decision would infringe on the federal 

judiciary's exclusive jurisdiction over immigration matters. 

11. Whether the Orphans' Court erred when it went against the weight of the evidence 

to hold that there was insufficient evidence to invalidate the marriage between 

Decedent and Respondent based upon Petitioner's evidence of immigration fraud. 

12. The Orphans' Court erred in rendering the conclusion of law based on improper 

application of statutory interpretation that there undisputedly was a marriage 

between Decedent and Respondent within the eyes of the law, in derogation of well - settled principles of squatty construction. 

13. The Orphans' Court clearly abused its discretion in holding that there was "no 

testimony establishing an agreement between Decedent and Respondent to marry 

for the sole purpose of helping Respondent circumvent immigration laws[]" when 

there was substantial testimony admitted into the record without objection that 

Decedent and Respondent married for the sole purpose of circumventing federal 

immigration laws. 

14. The Orphans' Court abused its discretion by failing to deny Respondent's spousal 

share claim based on the doctrine of unclean hands when Respondent called 

witnesses, such as Ang Chokpa Sherpa, who perjured herself in order to testify in 

support of the marriage and admitted that Respondent shared information with her 

prior to her prior [sic] to having testified, in violation of the Court's sequestration 

Order. 

15. The Orphans' Court abused its discretion in denying Petitioner's Petition to strike 

Respondent's spousal share claim based on unclean hands when Respondent called 

her cousin, Ang Chokpa Sherpa, to testify in support of her alleged marriage and 

Mg Chokpa Sherpa's testimony was false and was plainly contradicted by 

documents entered into evidence on the record, including Mg Chokpa Sherpa's 

claim that she was not in Nepal for Decedent and Respondent's wedding, which was 
controverted by a letter written by Ang. Chokpa Sherpa and submitted to USCIS 

stating that she as a witness to the wedding. 

16, The Orphans' Court Order and Decision went against the weight of the documentary 

evidence showing that Decedent made false representations to immigration about 

the bona fides of the alleged marriage, Respondent's family made false 

representations to immigration about the alleged union, and Decedent's tax preparer 

testified that Decedent admitted he had committed marriage fraud to help his 

girlfriend, Mg Chokpa Sherpa, obtain immigration statute for her cousin, 

Respondent, and is clear error. 

17. The Orphans' Court erred in relying upon In re Manfredi's Estate, 399 PA. 285, 291, 

159 A.2d 697, 700 (1960), for the proposition that marriage in Pennsylvania is a 

civil contract by which a man and a woman take each other for Husband [sic] and 

wife, but failing to acknowledge that a civil contract in the Commonwealth of 

Pennsylvania for an illegal purpose is void. 

18. The findings of fact made buy the Orphans' Court went against the weight of the 

evidence and the Court relied primarily on hearsay testimony from Resporident's 

friends and cousin, rather the documentary evidence that the Court admitted into 

evidence and which controverts Respondent's claim. Therefore, the Orphans' court 

made clear error. 

19. The Orphans' Court erred by asserting the position that a party's reason or entering 

into a marriage, including in order to circumvent immigration laws, is not relevant 

to the findings of whether there was an intention to many and ruling upon In re 

Gower's Estate, 445 Pa. 554, 557, 284 Aid 742, 744 (1971) in support of that 

erroneous position. 

20. The Orphans' Court erred in holding that Petitioner's argument that the marriage 

between Decedent and Respondent should be deemed void ab initio because it was 

an illegal agreement, is not a valid basis to deny recognition of a marriage because 

an agreement to marry cannot in itself be a violation of a statute. 

21. The Orphans' Court erred in holding that Respondent had clean hands because there 

was ample evidence that Respondent was lying about material issues and calling 

witnesses to lie on her behalf, which directly affected the relationship subsisting 

between the parties to the litigation. 

22. The Orphans' Court erred in failing to apply the doctrine of unclean hands after 

finding the Respondent was "by no means a flawless party throughout the course of 

this litigation", and when the evidence admitted into the record established that 

Respondent and her cousin, Ang Chokpa Sherpa, lied under oath, thus directly 

affecting the relationship subsisting between the parties. 

23. The Orphans' Court erred in denying Petitioner's request to (1) annul the marriage 

5 ' 
between Decedent and Respondent on the basis of Petitioner's allegations that the 

marriage between Decedent and Respondent was a "sham" in order to perpetrate 

immigration fraud, and (2) strike Respondent's claim for her elective share of the 

Decedent's estate via the doctrine unclean hands, 

24. The Orphans' Court erred in denying Petitioner's October 26, 2016 request to admit 

into evidence affidavits prepared by Respondent's mother, daughter, cousin, Ang 

Chokpa Sherpa, and the Decedent. On Page 21-22 of the October 26, 2016 transcript, 

Respondent acknowledge [sic] that the Immigration Application previously 

admitted into evidence was authentic, but objected to these affidavits. These 

additional affidavits were produced by Detective John Koretzky, who obtained an 

official copy of Respondent's Immigration Application from USCIS (pg. 35) during 

the course of his investigation and these should have been admitted as I was a more 

complete version of the immigration packet. Further, these affidavits evidenced 

material misrepresentations by Respondent and her cousin, Ang Chokpa Sherpa, and 

were therefore highly probative and the denial of same prejudicial to Petitioner. 

25. The Orphans' Court abused its discretion by failing to find that Lakpa Sherpa had 

unclean hands when Detective Koretzky testified on October 26. 2016 that Lakpa 

Sherpas fraudulent activity was uncovered by Homeland Security and that the 

Decedent's affidavit was written in broken English-the Decedent being a natural 

born citizen of the United States. 

26. The Orphans' Court erred in sustaining Respondent's objection to the testimony of 

Lynne Jones on July 13, 2016 as hearsay (page 11-12 of transcript), which testimony 

went to Cathy Bassiouni's then existing state of mind prior to testifying in this case 

that the alleged marriage was not bona fide. 

27. Petitioner respectfully requests that the Order entered on Macli 3, 2017 be Vacated 

[sic] and that the matter be remanded for a new trial consistent with the ruling of the 

Superior Court. 

DISCUSSION 

From the onset, we believe that the majority of the issues Appellant raises were directly 

addressed in our Memorandum Opinion of March 7, 2017. To the extent that Appellant's concise 

statement raises issues that were not directly addressed by the Memorandum Opinion, we will 

address them separately below. For ease of discussion we classify these issues into three topics: 

(1) claims that are too vague to warrant review, (2) the non -admission of affidavits prepared by 

Appellee's mother, daughter, cousin, and the Decedent, and (3) the sustaining of Appellee's 

6 
objection to the testimony of Lynne Jones because such testimony was hearsay that did not fall 

within the then existing state of mind hearsay exception. With respect to the remainder of 

Appellant's claims, we attach our March 7, 2017, Memorandum Opinion hereto in support of our 

decision. 

Vague Issues 

We suggest that certain issues raised by Appellant in her 1925(b) Statement of Errors 

Complained of on Appeal are too vague and unspecific to merit review. This circumstance 

ultimately leaves the Court to guess as to what the issues are Appellant wishes to raise on appeal. 

Pennsylvania Rule of Appellate Procedure I 925(b)(4) reads, in relevant part: 

(4) Requirements; waiver. 

(i) The Statement [of errors complained of on appeal] shall set forth only 

those rulings or errors that the appellant intends to challenge. 

(ii) The Statement shall concisely identify each ruling or error that the 

appellant intends to challenge with sufficient detail to identify all pertinent 

issues for the judge. The judge shall not require the citation to authorities; 

however, appellant may choose to include pertinent authorities in the 

Statement. 

Pa.R.A.P. 1925(6)(4). 

"[T]he question of what constitutes a sufficient 1925(b) statement [has been considered] 

on many occasions, and it is well -established that [an] [a]ppellant's concise statement must 

properly specify the error to be addressed on appeal." In re A.B., 2013 PA Super 43, 63 A.3d 345, 

350 (2013) quoting Commonwealth v. Hanslev, 24 A.3d 410, 415 (Pa.Super.2011), appeal denied, 

613 Pa. 642, 32 A.3d 1275 (2011)). "'The Rule 1925(b) statement must be specific enough for 

the trial court to identify and address the issue an appellant wishes to raise on appeal,' and a court 

"may find waiver where a concise statement is too vague." Id. "'When a court has to guess what 

issues an appellant is appealing, that is not enough for meaningful review.' Id (qubting 

7 ' 
Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.2001)). Further,' [a] Concise Statement 

which is too vague to allow the court to identify the issues raised on appeal is the functional 

equivalent of no Concise Statement at all.'" Id. The Rule 1925(b) statement must be sufficiently 

detailed enough so that a judge may write an opinion. Burgoyne v. Pinecrest Cmty. Ass'n, 2007 

PA Super 132, 924 A.2d 675, 678 (2007) citing Commonwealth v. Reeves, 907 A.2d 1, 3 

(Pa.Super.2006)); 202 Island Car Wash, L.P. v. Monridge Const., Inc., 2006 PA Super 362, 913 

A.2d 922, 925 (2006) quoting Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa.Super.2002)). 

Here, Appellant raises numerous vague issues that preclude meaningful review. In 

particular, issues twelve', fourteen2, eighteens, twenty-one4, and twenty-twos lack the requisite 

specificity to enable this Court to conduct a thorough analysis. What Appellant provides are 

merely conclusory accusations that are neither specific in subject matter nor in identifying where 

in the record such issues are found. In particular, issue twelve accuses this Court of improper 

statutory interpretation. Appellant does not cite a specific statute or explain how this Court 

specifically misapplied said statute. Issue eighteen alleges that this Court made findings of fact 

that went against the weight of the evidence in relying on hearsay testimony rather than 

I Issue 12 alleges, "Mile Orphans' Court erred in rendering the conclusion of law based on improper application of 

statutory interpretation that there undisputedly was a marriage between Decedent and Respondent within the eyes of 

the law, in derogation of well -settled principles of squatty construction." 

2 Issue 14 alleges, "[t]he Orphans' Court abused its discretion by failing to deny Respondent's spousal share claim 

based on the doctrine of uncleah hands when Respondent called witnesses, such as Ang Chokpa Sherpa, who perjured herself in order to testify in support of the marriage and admitted that Respondent shared information with her prior 

to her prior [sic] to having testified, in violation of the Court's sequestration Order." 

3 Issue 18 alleges, "[t]he findings of fact made by the Orphans' Court went against the weight of the evidence and the 

Court relied primarily on hearsay testimony from Respondent's friends and cousin, rather the documentary evidence 

that the Court admitted into evidence and which controverts Respondent's claim. Therefore, the Orphans' court made 

clear error." 

4 Issue 21 alleges, "[t]he Orphans' Court erred in holding that Respondent had clean hands because there was ample evidence that Respondent was lying about material issues and calling witnesses to lie on her behalf, which directly affected the relationship subsisting between the parties to the litigation." 3 Issue 22 alleges, "[t]he Orphans' Court erred in failing to apply the doctrine of unclean hands after finding the 

Respondent was "by no means a flawless party throughout the course of this litigation", and when the evidence 

admitted into the record established that Respondent and her cousin, Ang Chokpa Sherpa, lied under oath, thus directly affecting the relationship subsisting between the parties." 

8 
documentary evidence. Appellant does not identify what specific hearsay evidence this Court 

allegedly erroneously relied upon. 

Issues fourteen, twenty-one, and twenty-two all allege that witnesses perjured themselves. 

In making such allegations, Appellant neither specifically identifies the specific portion of the 

testimony that is suspect nor cites to the record. If the Court were to attempt to write an opinion 

based on Appellant's vague perjury allegations, we would be forced to guess the specifics of such 

claims. Ostensibly, we would be drafting arguments on Appellant's behalf. We suggest that the 

aforementioned issues Appellant raises are so vague as to be deemed waived. 

The Affidavits 

Issue twenty-four of Appellant's Rule 1925(b) Statement alleges that we erred in denying 

Appellant's request to admit affidavits prepared by Appellee's mother, daughter, cousin, and 

Decedent. Appellant argues that these affidavits offered a more complete version of the 

immigration applications that were already admitted into evidence. Appellant also argues that the 

affidavits created by Appellee and Ang Chokpa Sherpa would have evidenced that both Appellee 

and Ang Chokpa Sherpa made material misrepresentations throughout the course of the 

proceedings. We suggest that denying Appellant's request was proper. 

Under Pennsylvania law, the standard of review governing evidentiary issues is settled. 

The decision to admit or exclude evidence is committed to the trial court's sound discretion, and 

evidentiary rulings will only be reversed upon a showing that a court abused that discretion. A 

finding of abuse of discretion may not be made "merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, 

prejudice, bias, or or such lack of support so as to be clearly erroneous." Commonwealth v. Koch, 630 Pa. 374, 383-84, 106 A.3d 705, 710-11 (2014) quoting Commonwealth v. Laird 

9 
605 Pa. 137, 988 A.2d 618, 636 (2010); See also Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 

24, 48 (2011). Matters within the trial court's discretion are reviewed on appeal under a deferential 

standard, and any such rulings or determinations will not be disturbed short of a finding that the 

trial court "committed a clear abuse of discretion or an error of law controlling the outcome of the 

case." Commonwealth v. Chambers 602 Pa. 224, 980 A.2d 35, 50 (2009) (jury instructions). 

Furthermore, hearsay is a statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Commonwealth 

v. Watley 2016 PA Super 311, 153 A.3d 1034 (2016) citing Pa. R. Evid. 801(c). The admissibility 

of out -of -court statements by an unavailable witness turns, not upon the presence or absence of 

indicia of reliability, but upon a determination of whether the statements are testimonial for 

nontestimonial in nature. In re N.C., 2013 PA Super 229, 74 A.3d 271 (2013), affd, 629 Pa. 475, 

105 A.3d 1199 (2014). 

In the instant case, the affidavits at issue could not be properly authenticated. The affidavits 

were also testimonial in nature. Trial testimony revealed that Detective Koretzky received the 

affidavits from another governmental agency. Detective Kortetzky could neither establish the 

affidavits' veracity nor could he indicate what specific material misrepresentations the affidavits 

might contain. N.T. 10/26/16 pp 35-42. Appellant also sought to introduce these affidavits on the 

last day of hearings without providing Appellee sufficient notice to evaluate the affidavits. 

Moreover, the affidavits themselves constitute inadmissible hearsay as Appellant would have the 

court admit these affidavits for the truth of the content they assert. This court is aware of no 

hearsay exception that would have permitted the affidavit to become part of the record. 

Accordingly, we suggest that it was proper to deny Appellant's request to admit into evidence the 

affidavits of Appellee's mother, daughter, cousin, and the Decedent. 

10 
Appellee's objection to the testimony of Lynne Jones 

Issue twenty-six in Appellant's Rule 1925(b) Statement alleges that this Court erred in 

sustaining Appellee's objection to the testimony of Lynne Jones because such testimony was 

admissible under the then state of mind hearsay exception. We suggest that Appellant's position 

lacks merit. 

Under Pennsylvania law, the rule against hearsay evidence does not preclude statements 

concerning the declarant's then -existing state of mind. Pa.R.B. 803. Under this rule: 

"A statement of the declarant's then -existing state of mind (such as motive, intent 

or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, 

or bodily health), but not including a statement of memory or belief to prove the 

fact remembered or believed unless it relates to the validity or terms of the 

declarant's will." Pa.R.E. 803. 

There are ordinarily three instances in which the state of mind exception to the hearsay rule is 

applicable: (1) to prove the declarant's state of mind when that state of mind is an issue directly 

related to a claim or defense in the case; (2) to demonstrate that a declarant did a particular act that 

was in conformity with his or her statement after having made the statement; and (3) an out of 

court statement related to the person's memory or belief is admissible in the limited instance where 

it relates to the execution, revocation, identification or terms of the declarant's will. Schmalz v. Manufacturers & Traders Trust Co., 2013 PA Super 52, 67 A.3d 800 (2013) citing Pa. R.E. 803. 

"[The determination of whether out -of -court statements are admissible under the state of mind 

exception to the hearsay rule is within the sound discretion of the trial court and will be reversed 

only upon an abuse of that discretion." Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 

623 (Pa,2001). 

In the instant case, a careful review of the trial record indicates that it was proper to sustain 

Appellee's objection. Appellant sought to introduce the contents of a telephone conversation by 

11 
and between Lynne Jones and Cathy Bassiouni. N.T, 07/13/16. pp. 10-13. Ms. Bassiouni, as the 

declarant, was allegedly commenting on the circumstances of the marriage between Appellee and 

the Decedent. Accordingly, it would be improper to admit content of the conversation under the 

state of mind hearsay exception because the declarant's state of mind is not an issue directly related 

to a claim or defense in the case. Bassiouni was not making a statement that revealed her mental 

state or a statement that conveyed an emotional, sensory, or physical condition. The telephone 

conversation was also not proffered to demonstrate that the declarant engaged in a particular act 

in conformity with the statement, Furthermore, the Decedent's will with respect to its execution, 

revocation, identification, or terms were not an issue in the case. It is clear that Appellant sought 

to use the then existing state of mind exception as a conduit to admit the telephone conversation's 

contents which Appellant hoped to be admitted as substantive evidence. The rule against hearsay 

strictly prohibits such conduct as Appellant would have this court permit the use an out -of -court 

statement for the truth of the matter asserted where no hearsay exception applies. We therefore 

suggest that sustaining Appellee's objection was proper. 

CONCLUSION 

Based upon the foregoing and for the reasons previously set forth in our attached 

Memorandum Opinion of March 7, 2017, we suggest that the present appeal should be dismissed. 

5 /at= 10.611 

DATE 

N.B. It is your responsibility 

to notify all interested parties 

of the above action. 

12 

BY THE COURT: 

C. THEODORE FRITSCH, JR., ADMIN. J