J-A05032-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN RE: ESTATE OF FRED 

GITTERMAN, DECEASED

APPEAL OF: ESTATE OF FRED 

GITTERMAN, DECEASED

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1647 EDA 2023

Appeal from the Decree Entered June 5, 2023

In the Court of Common Pleas of Delaware County Orphans’ Court at 

No(s): 0286-2018-O

BEFORE: DUBOW, J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED APRIL 3, 2024

The Estate of Fred Gitterman, deceased (“the Estate”), appeals from the 

decree which distributed the balance of the Estate to Heidi Gitterman 

(“Gitterman”) and Francine Smolen (“Smolen”). We affirm.

The orphans’ court summarized the relevant factual and procedural 

history as follows:

Frederick [“]Fred[”] Gitterman ([“]decedent[”]) was 

tragically killed in a hit and run accident in . . . March . . . 2018. 

Earlier in his life, decedent met . . . Gitterman, at [college] where 

they began dating, and . . . married in . . . 1970. . . . In 1980, 

decedent and . . . Gitterman divorced, although they maintained 

a caring relationship. 

Unfortunately, decedent[, an attorney,] eventually lost his 

law license, and in around 2012, was in dire need of financial 

assistance. Starting [i]n October . . . 2012, . . . Gitterman began 

lending money to decedent for his food, hotel rooms, and payment 

of his bills. . . . [Gitterman’s sister,] Smolen[,] began lending 

decedent funds for basic food and lodging starting in 2014, when 

she learned from her sister of decedent’s financial situation.
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Decedent was very specific in his written communications 

with the two sisters in stating exactly the amounts that he 

believed he owed each of them, and he would provide time ranges 

in which he believed he would be able to make repayments. . . . 

Gitterman carefully tracked the funds being loaned to decedent in 

a document she titled “Loans to Freddy 2012 – 2017.” . . . 

Smolen kept a chronology of the money that she loaned decedent 

in the form of a spreadsheet. Communications between decedent 

and . . . Gitterman[,] and decedent and . . . Smolen[,] reflected 

that the payments being made for decedent’s expenses were in 

the form of a loan. In return, decedent kept . . . Gitterman and 

. . . Smolen informed as to potential career opportunities and his 

financial abilities. Decedent acknowledged the specific loan 

amounts owed to [Gitterman and Smolen] in emails dated 

February 22, 2016, November 4, 2016, and October 22, 2017. 

. . . Gitterman testified that throughout the time that she 

was lending decedent money, she was aware that he was 

attempting to obtain funds and he was acknowledging what 

amounts she loaned him. She testified that there are letters, 

e[]mails, text messages, and phone calls discussing the debt, the 

importance of paying the debt, and decedent’s agreement to 

repaying it. . . . Gitterman testified that she knew decedent was 

getting healthier and had confidence that he was going to make 

repayment. . . . Gitterman testified that she had specific 

knowledge of decedent’s communications with extremely 

prominent businessmen. . . . 

The discussions between . . . Smolen and decedent were 

clear that [her] payments to decedent were in the form of a loan. 

. . . Smolen testified that decedent would often confirm how much 

money was owed to . . . Smolen, and decedent would indicate that 

he would be repaying with interest. . . . Smolen testified that her 

understanding of the loan agreement was that when decedent had 

the money, or some money, he would make repayment. She 

testified that she expected that at some point, he would have the 

money. She testified that “there were so many ways that he was 

looking into making money.” . . . Smolen testified that she was 

aware of his pursuit of many business ventures and his work as a 

paralegal to attempt to bring himself into good standing as an 

attorney. . . . 
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Orphans’ Court Opinion, 9/28/23, at 3-6 (citations to the record and 

unnecessary capitalization omitted).

Shortly after decedent’s death, Laurence M. Cramer, Esquire (“Attorney 

Cramer”) filed a petition for the grant of letters of administration, averring 

that decedent died intestate and that his sister, Sue Ellen Reinish (“Reinish”) 

was his sole surviving heir. Attorney Cramer was thereafter appointed as the 

Administrator of the Estate. 

Gitterman subsequently produced a copy of a handwritten will executed 

by decedent in 2013 in which he left his entire estate to her and named her 

as executrix. Gitterman renounced her position as executrix, and instead 

appointed Howard L. Gleit, Esquire (“Attorney Gleit”) as executor. The 

Register of Wills accepted the copy of the 2013 will for probate, revoked the 

letters of administration issued to Attorney Cramer, and granted letters of 

administration to Attorney Gleit. Following a de novo appeal to the orphans’ 

court, the court issued a decree removing the copy of the 2013 will from 

probate and setting aside the letters of administration issued to Attorney Gleit. 

This Court affirmed the orphans’ court decree. See In re Estate of 

Gitterman, 793 EDA 2020 (Pa. Super. 2021) (unpublished memorandum) 

(affirming the orphans’ court’s determination that, because the original 2013 

will was never found, a presumption arose that decedent revoked or destroyed 

it, and Gitterman failed to rebut this presumption with clear, direct, weighty 

and convincing evidence).
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In April 2020, while the prior appeal was pending, Gitterman and 

Smolen executed notices of claims against the Estate. Gitterman’s claim was 

for the amount of $120,340.59, which included the accumulated loan amounts 

of $81,258.83, plus six percent statutory interest.1 Smolen’s claim was for 

the amount of $44,405, which included the accumulated loan amounts of 

$25,308.64, plus six percent statutory interest.2 

Meanwhile, the Estate initiated a lawsuit against the driver who struck 

decedent and recovered $225,000 in settlement of a wrongful death claim. 

The Estate did not provide notice of the settlement to Gitterman or Smolen, 

despite the fact that they had filed notices of claims against the Estate. 

Gitterman and Smolen filed a petition to compel the filing of an 

accounting of the Estate. The Estate filed a petition for adjudication as well 

as a proposed distribution and accounting, which advocated that the balance 

of the Estate, consisting of $82,092.30, be distributed to Reinish. Gitterman 

and Smolen filed objections to the proposed accounting. The parties 

conducted videotaped depositions of Gitterman and Smolen. The sisters each 

alleged that they made loans to decedent from 2012 through 2018 pursuant 

to an oral agreement that decedent would repay them when he returned to 

____________________________________________

1 Gitterman filed an additional notice of claim for the monetary gifts that 

decedent promised to give her in the amount of $111,500.

2 Smolen filed an additional notice of claim for the monetary gifts that 

decedent promised to give her in the amount of $37,500.
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work or when funds would be available to him. The matter proceeded to a 

trial in April 2023, at which the videotaped depositions of Gitterman and 

Smolen were admitted into evidence. On June 5, 2023, the orphans’ court 

entered a decree which adopted the proposed findings of fact and conclusions 

of law submitted by Gitterman and Smolen, sustained their objections to the 

accounting, and directed that the balance of the Estate be distributed to them. 

The Estate timely appealed, and both the Estate and the orphans’ court 

complied with Pa.R.A.P. 1925.3

The Estate raises the following issues for our review:

1. Did the [orphans’] court commit reversible error in finding that 

there was a valid and enforceable loan agreement when all the 

evidence indicated that the parties never behaved as though a 

loan agreement existed and the conduct of the parties was 

consistent with a gift to [decedent] that [he] had a choice to 

repay at his own discretion?

2. In the alternative, assuming this Court determines the 

[orphans’] court did not abuse its discretion in finding a valid 

loan agreement, did the [orphans’] court commit reversible 

error in ignoring the statute of limitations and ordering the

[E]state . . . to repay money that was given to [decedent] more 

than four (4) years prior to any claims being made?

Estate’s Brief at 4 (unnecessary capitalization omitted). 

Our standard of review of an orphans’ court decree is well-settled:

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3 The Estate filed a four-page concise statement which raised twelve issues. 

The orphans’ court determined that the Estate’s issues on appeal were waived 

for lack of concision, clarity, and specificity. See Orphans’ Court Opinion, 

9/28/23, at 9-11. Nevertheless, the orphans’ court authored an opinion 

addressing the issues. We decline to find waiver, and will instead address the 

merits of the issues presented for our review. 
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When reviewing a decree entered by the orphans’ court, this 

Court must determine whether the record is free from legal error 

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

Because the orphans’ court 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 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.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation and 

unnecessary capitalization omitted).

In its first issue, the Estate contends that the orphans’ court erred in 

finding the existence of a valid and enforceable loan agreement. Under 

Pennsylvania law, the elements of an enforceable contract are an offer, 

acceptance, consideration, and mutual meeting of the minds. See Chilutti v. 

Uber Technologies, Inc., 300 A.3d 430, 443 (Pa. Super. 2023) (en banc)

(citation and internal quotation marks omitted). “An agreement is an 

enforceable contract wherein the parties intended to conclude a binding 

agreement and the essential terms of that agreement are certain enough to 

provide the basis for providing an appropriate remedy.” United Envtl. Grp.,

Inc. v. GKK McKnight, LP, 176 A.3d 946, 963 (Pa. Super. 2017) (citation

omitted).

Additionally, there must be a “meeting of the minds” for an agreement 

to exist. See Accu-Weather, Inc. v. Thomas Broadcasting Co., 625 A.2d 

75, 78 (Pa. Super. 1993). As this Court has explained:

[T]he very essence of an agreement is that the parties 
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mutually assent to the same thing . . .. Without such assent there 

can be no [enforceable] agreement . . .. The principle that a 

contract is not binding unless there is an offer and an acceptance 

is to ensure that there will be mutual assent . . ..

Id. (citation omitted). 

The burden of proving an oral contract is on the party seeking to 

establish it. See Boyle v. Steiman, 631 A.2d 1025, 1033 (Pa. Super. 1993). 

When construing an oral contract, the words constituting the agreement are 

merely parts of and imbedded in a general conversation, and the meaning 

must be interpreted with reference to the circumstances under which the 

parties contracted in light of the objectives to be accomplished. Id. In cases 

involving contracts wholly or partially composed of oral communications, the 

precise content of which are not of record, courts must look to surrounding 

circumstances and course of dealing between the parties in order to ascertain 

their intent. Id.

“[I]n the case of a disputed oral contract, what was said and done by

the parties as well as what was intended by what was said and done by them

are questions of fact for the [fact finder].” United Envtl. Grp., Inc., 176

A.3d at 963 (citation omitted). This Court is bound by the trial court’s 

credibility determinations. See Keystone Dedicated Logistics, Inc. v. JGB

Enters., 77 A.3d 1, 6 (Pa. Super. 2013). However, the question of whether

an undisputed set of facts establishes a contract is a matter of law. See

United Envtl. Grp., Inc., 176 A.3d at 963. Consequently, our standard of

review over questions of law is de novo and to the extent necessary, the scope 
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of our review is plenary. See Keystone Dedicated Logistics, Inc., 77 A.3d 

at 6. 

The Estate contends that the orphans’ court erred in determining that 

Gitterman and Smolen were creditors of the Estate because there was no valid 

loan agreement between the decedent and either Gitterman or Smolen. The 

Estate claims that none of the essential elements of a contract were present 

in the communications between the parties. In particular, the Estate asserts 

that there was no consideration, no essential terms, and no mutual 

agreement, noting that there was no discussion of any remedy if decedent 

failed to make repayment, and no written agreement establishing a default 

provision. 

The Estate concedes that the decedent sent emails in which he 

acknowledged the money he received from Gitterman and Smolen and that 

he promised to repay the amounts he received from them with interest and 

additional gift money. However, the Estate nevertheless argues that 

decedent’s acknowledgement of the money he received and his promises to 

make repayment were insufficient to establish a contract. The Estate asserts 

the absence of any discussion between the parties regarding an interest rate 

on the alleged loans confirms that there was no mutual consideration between 

the parties. According to the Estate, any moral satisfaction that Gitterman 

and Smolen experienced is not valid consideration. The Estate claims that, 

because decedent had no assets and was not working over the course of the 
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six years in which the payments were made, Gitterman and Smolen had no 

reasonable basis to believe that decedent would ever repay them. The Estate 

insists that the fact that Gitterman and Smolen never intended to take any 

legal action against decedent establishes that they did not intend for the 

payments to be a legally enforceable loan agreement. Instead, the Estate 

argues, the transactions at issue were simply gifts made of love and care, with 

no expectation of repayment.

The orphans’ court considered the Estate’s first issue and concluded that 

it lacked merit. The court reasoned:

Decdent and [Gitterman and Smolen] clearly formed a valid 

oral agreement enforceable under Pennsylvania law. Said oral 

agreement was in the form of a demand loan. [Gitterman and 

Smolen] and decedent agreed that [Gitterman and Smolen] would 

lend decedent funds for his basic needs, ie. food and shelter. This 

is corroborated by [Gitterman and Smolen’s] bookkeeping of said 

loans and decedent’s emails to [them] characterizing the funds as 

loans. The evidence presented makes it clear that decedent in 

fact intended to repay [Gitterman and Smolen] and went so far as 

keeping them apprised of his financial status and reassuring them 

that he would make repayment when he was able. [Gitterman 

and Smolen’s] testimony confirms this was their understanding of 

the loan agreement and conditions of repayment. Decedent’s 

ability to return to work and/or have available funds was the 

condition precedent for repayment. The writings corroborate the 

testimony presented and the parties’ understandings of the 

agreement.

* * * *

The conduct and course of dealing between the parties from 

2012 up until decedent’s death in late 2018 clearly established 

that decedent formed a valid and enforceable oral contract 

between himself and . . . Gitterman and . . . Smolen. As 

mentioned above, . . . Gitterman kept a log of the finances she 

was loaning to decedent and titled said log as “Loans to Freddy 
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2012 – 2017.” . . . Smolen also kept a log of the finances she was 

loaning decedent.

As reflected in [the accounts] and corroborated by [the 

correspondence], [Gitterman and Smolen] and decedent 

acknowledged that these funds were in fact a loan and not a gift. 

In fact, it is clear in reviewing the communications between the 

parties that when they intended for a payment to be a gift rather 

than a loan, it was specifically stated as such. At times when 

decedent believed that he would be in a position in the near future 

to make repayment, he requested both . . . Gitterman and . . . 

Smolen’s bank account information in order for him to be able to 

wire funds for repayment to [them]. This is a clear and 

unequivocal acknowledgment of the debt and promise to repay 

said debt. . . . [Gitterman and Smolen] and decedent had a 

mutual understanding of the oral agreement in the form of a 

demand loan, and the terms of the enforceable contract were 

clearly set out between the parties.

* * * *

Both . . . Gitterman and . . . Smolen had an understanding 

that they would be repaid gift money in addition to the principal 

loans they made to decedent. During her deposition testimony, . 

. . Smolen acknowledged that decedent promised repayment to 

her by repaying “the base of the principal loan that [she made], 

plus a gift in lieu of interest.” During her deposition testimony, . 

. . Gitterman stated that decedent “express[ed] his appreciation 

and he wanted to give some gift money that included the interest. 

It would be over and above the interest.” She further stated that 

decedent promised to “pay back with interest and gift money.” 

These assertions made by decedent and agreed upon by 

[Gitterman and Smolen] clearly establishes a benefit to the 

promisor in return for [Gitterman and Smolen’s] loans made to 

decedent. Therefore, there was consideration in exchange for the 

loans being made to decedent

* * * *

The abundance of evidence presented by [Gitterman and 

Smolen] clearly reflects that a valid and enforceable agreement 

was entered into by the parties. Regardless of whether 

[Gitterman and Smolen] contemplated legal action for decedent’s 
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lack of repayment is of no moment. Clearly, [Gitterman and 

Smolen] were aware, as they were being kept updated by 

decedent regularly, that [he] did not have the necessary funds to 

make repayment. However, [Gitterman and Smolen] kept 

accurate records of the loans being made and worked with 

decedent in attempting to have repayment accomplished when 

decedent made promises to pay. 

Default provisions are not a legal requirement in order to 

determine [that] a contract [is] legal and enforceable. . . . 

. . . The various emails between decedent and [Gitterman 

and Smolen] confirm recognition of the loans and the intention 

that they be loans. Decedent expressly promised to repay the 

loans in his communications with [Gitterman and Smolen]. While 

it is acknowledged that decedent did not repay either [Gitterman 

and Smolen], the condition precedent to him doing so was that he 

would become re-employed and financially stable. . . . 

Unfortunately, it was not until decedent’s death that he had funds 

that could be used to repay his loans.

Orphans’ Court Opinion, 9/28/23, at 12-16, 18-19, 20-21 (citations to the 

record and unnecessary capitalization omitted).

Based on our review of the record, we conclude that the orphans’ court’s

determination is supported by the record and free of error. The evidence 

presented by Gitterman and Smolen was more than sufficient to meet their 

burden of proving the existence of an oral loan contract between Gitterman 

and decedent and Smolen and decedent. See Boyle, 631 A.2d at 1033. The 

orphans’ court credited the testimony and documentary evidence presented 

by Gitterman and Smolen reflecting that decedent regarded the payments as 

loans. Indeed, the decedent repeatedly acknowledged via email his receipt of 

payments from Gitterman and Smolen, as well as his intention to repay them 

in full for those payments, and to pay interest on those amounts as well as an 
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additional monetary gift as soon as he was able to do so. That the parties did 

not discuss a specific interest rate or the imposition of penalties does not alter 

the clear contractual nature of their transactions. Nor does the fact that 

decedent continued to experience financial hardship and was unable to make 

any payments to either Gitterman or Smolen prior to his death detract from

the clear intention and agreement of the parties to regard the payments as 

loans. Consequently, we conclude that the evidence establishes that there 

was an offer, acceptance, consideration, mutual understanding, and 

sufficiently clear terms to provide the basis for an appropriate remedy. See 

United Envtl. Grp., Inc., 176 A.3d at 963. Accordingly, the Estate’s first 

issue merits no relief. 

In its second issue, the Estate contends that the claims for repayment 

asserted by Gitterman and Smolen are barred by the statute of limitations. 

Because the applicability of a statute of limitations is a question of law, our 

scope of review is plenary and our standard of review is de novo. See Ash v. 

Continental Ins. Co., 932 A.2d 877, 879-80 (Pa. 2007). Statutes of 

limitations are rules of law that set time limits for bringing legal claims. See 

DiDomizio v. Jefferson Pulmonary Assocs., 280 A.3d 1039, 1046 (Pa. 

Super. 2022). Relevantly, the statute of limitations for an action upon an 

express contract not founded upon an instrument in writing is four years. See

42 Pa.C.S.A. § 5525(a)(3). 
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However, the statute of limitations may be tolled if the contract contains

a condition precedent, such as an act or event which triggers the duty to 

perform on the contract. See Gurenlian v. Gurenlian, 595 A.2d 145, 150 

(Pa. Super. 1991). “[W]here the contract is to pay on the future performance 

of a condition . . . or at a certain time after demand, there a demand is 

necessary to a right of action and the statute of limitations does not begin 

running until a demand is made.” Id. (citation and internal quotation marks 

omitted). However, where there is no evidence or testimony in the record 

indicating that repayment was conditioned on the occurrence of a condition 

precedent or of a demand of repayment, the running of the statute of 

limitations is not contingent on a demand being made and, therefore, the 

statute is not tolled. See id. 

The Estate argues that, if the payments are characterized as loans, then 

any claim for repayment of those loans is barred by the four-year statute of 

limitations. According to the Estate, most of the loans were made to decedent 

prior to April 1, 2016. The Estate asserts that, because Gitterman and Smolen 

did not file their notices of claims against the Estate until April 1, 2020, most 

of their claims for repayment are time-barred. The Estate additionally argues 

that, because the parties did not expressly condition decedent’s repayment on 

any occurrence or the making of a demand by Gitterman and Smolen, they 

were required to commence an action against decedent for breach of the loan 
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contract within four years of each and every payment that they made to 

decedent.

The orphans’ court considered the Estate’s second issue and determined 

that it lacked merit. The court reasoned:

. . . The oral loan herein is clearly a demand loan, as 

[Gitterman and Smolen] could demand repayment of their loan at 

such time as a condition precedent, or contingency was met. 

Pursuant to [Gitterman and Smolen’s] testimony, there was no 

specific date for repayment to be made. Further, April [1], 2020

was the first time that [Gitterman and Smolen] made a demand 

for repayment of the loans. The oral loans were demand loans 

where decedent would be required to make repayment upon 

demand by [Gitterman and Smolen] when he obtained the funds 

to be able to make repayment. Pursuant to the statute, the 

statute of limitations required that the tolling of this action be 

accomplished within four years of the making of a demand for 

repayment.

* * * *

. . . [I]n the instant matter, the oral agreement contained a 

clear condition precedent to decedent’s repayment, which has 

been reflected by the voluminous amount of evidence presented. 

Decedent was to gain employment and a sound financial status 

and then [Gitterman and Smolen] would demand repayment. 

[Gitterman and Smolen] reasonably expected to be repaid and 

relied on decedent’s assertions that he would ultimately be in a 

position to repay them, as he was experienced in the area of law 

and made [Gitterman and Smolen] aware of specific projects he 

was purs[u]ing, as well as potential reimbursements for work to 

be performed. The contingency was never fulfilled during 

decedent’s lifetime and was only fulfilled following his death, due 

to lawsuit proceeds being available in 2022.

In the instant case, a demand was necessary for the statute 

of limitations to begin running. . . . [T]here is an abundance of 

evidence in the record which indicates that payment was 

contingent on the occurrence of a condition precedent. Further, 

decedent provided [Gitterman and Smolen] with continuous 

updates as to his financial opportunities and status, confirming his 
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current inability to repay the debt but reassuring [Gitterman and 

Smolen] that he was seeking opportunities to be able to repay the 

outstanding debt. The condition of repayment was that . . . 

Gitterman and . . . Smolen would demand repayment from 

decedent when he would become re-employed and get back on 

his feet financially. 

Orphans’ Court Opinion, 9/28/23, at 22-24 (citations to the record and 

unnecessary capitalization omitted).

We discern no error in the orphans’ court’s application of the statute of 

limitations to the instant case. Gitterman and Smolen both testified that 

decedent’s repayment of the loans was contingent upon his ability to earn 

enough money to repay them or otherwise have sufficient funds to repay 

them. That condition precedent never occurred in decedent’s lifetime. When 

the Estate obtained the settlement proceeds in the personal injury action, the 

condition precedent was met. Gitterman and Smolen then filed their notices 

of claims against the Estate, and thereby asserted their demands for 

repayment upon the first sign of an ability to pay. As those demands were 

made within the applicable four-year statute of limitations, the orphans’ court 

did not err in determining that the demands were not barred by section 

5525(3). Accordingly, the Estate’s second issue merits no relief.

Decree affirmed.
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Date: 4/03/2024