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                             2016 PA Super 245

IN RE: ESTATE OF RALPH F. TITO,                IN THE SUPERIOR COURT OF
DECEASED                                             PENNSYLVANIA


APPEAL OF: CAROL J. GALINAC
                                                    No. 351 WDA 2016


             Appeal from the Order Entered February 10, 2016
          In the Court of Common Pleas of Westmoreland County
                   Orphans' Court at No(s): 65-13-1922


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                        FILED NOVEMBER 15, 2016

      Carol J. Galinac appeals from the order entered in the Court of

Common Pleas of Westmoreland County, Orphans’ Court Division, granting

summary judgment in favor of the Estate of Ralph F. Tito, Deceased. Upon

careful review, we affirm.

      Ralph F. Tito (“Decedent”) died on September 20, 2013. He left a will

dated March 1, 2007, which was duly admitted to probate. Decedent was

survived by his four children, Nancy J. Tito, Ann L. Wilson, Ralph R. Tito and

Anthony C. Tito, all of whom were named as co-executors under Decedent’s

will. Decedent was unmarried at the time of his death. However, he had

been in a romantic relationship with Galinac since the early 1990s.

Decedent’s will divided his estate equally amongst his four children and

provided nothing for Galinac.

      On October 20, 2014, Galinac filed a document entitled “Claim Against

Estate of Ralph F. Tito,” in which she set forth eleven claims alleging that
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Decedent’s children stole numerous sums of money and other assets from

the Decedent which were intended for her. Galinac also alleged that certain

items of her personalty were not returned to her from the Decedent’s

residence. The Estate filed a response and counterclaim on November 13,

2014.     In its response, the Estate asserted that:       (1) a cohabitation

agreement entered into by the Decedent and Galinac barred any claims by

Galinac against the Estate; (2) a valid power of attorney allowed Ralph R.

and Nancy J. Tito to engage in financial transactions on Decedent’s behalf

prior to his death; (3) Galinac failed to provide a basis for claiming Decedent

intended any assets for her; and (4) many of Galinac’s claims were not

properly asserted against the Estate, but rather against Decedent’s children

in their individual capacities. In its counterclaim, the Estate: (1) demanded

the return of $11,500 it claims Galinac wrongfully withdrew from Decedent’s

checking account; (2) demanded the return of the date-of-death balance of

$3,153.59 in Decedent’s checking account; and (3) asserted a claim,

pursuant to the cohabitation agreement signed by Galinac, for counsel fees it

incurred defending Galinac’s claims against the Estate.

        On April 24, 2015, Galinac filed an amendment to her claim against

the Estate, in which she alleged that she was the Decedent’s common-law

wife and asserted her right of election against Decedent’s estate pursuant to




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20 Pa.C.S.A. § 2203.1        On May 1, 2015, the Estate filed a motion to bar

Galinac from electing against the Decedent’s will, citing section 2210 of the

PEF Code, which provides as follows:

       (b) Time limit.--The election must be filed with the clerk before
       the expiration of six months after the decedent’s death or before
       the expiration of six months after the date of probate, whichever
       is later. The court may extend the time for election for such
       period and upon such terms and conditions as the court shall
       deem proper under the circumstances on application of the
       surviving spouse filed with the clerk within the foregoing time
       limit. Failure to file an election in the manner and within the
       time limit set forth in this section shall be deemed a waiver of
       the right of election.

20 Pa.C.S.A. § 2210(b).

       On June 29, 2015, the Estate filed a motion for summary judgment in

which it asserted, inter alia, that Galinac’s election against the will was time-

barred and that her eleven claims for return of property were improperly

asserted against the Estate. Galinac filed her response on August 17, 2015,

and, on October 20, 2015, the Orphans’ Court entered an order granting

summary judgment with respect to Galinac’s attempt to elect against the

Decedent’s will. On November 5, 2015, the court entered an amended order

to correct an erroneous date contained in the original summary judgment

order and to further grant the Estate summary judgment with respect to
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1
  Section 2203 of the Probate, Estates and Fiduciaries (“PEF”) Code grants to
the spouse of a Decedent a right to a one-third share of certain enumerated
property, including, inter alia, property passing from the decedent by will.
See 20 Pa.C.S.A. § 2203(a)(1).



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Galinac’s   remaining       eleven   claims.    Galinac   filed   a   motion   for

reconsideration, in which she asserted that the Orphans’ Court had failed to

hear oral argument on the eleven claims.         By order dated November 24,

2015, the court granted reconsideration as to the eleven claims and

scheduled oral argument thereon.          Following argument, on February 10,

2016, the court entered an order denying reconsideration.             This timely

appeal follows, in which Galinac raises the following issues for our review:

      1. Does this Honorable Court have jurisdiction over this appeal
      under Pa.R.[A.]P. 341?

      2. Does the statute of limitations in 20 Pa.C.S. § 2210 prevent
      [Galinac] from proving her common law marriage to [Decedent]
      and electing against the will?

      3. Was summary judgment appropriate as to the eleven counts?

Brief of Appellant, at 3.

      Prior to addressing Galinac’s substantive claims, we must determine

whether this Court possesses jurisdiction over her appeal. On June 7, 2016,

Galinac filed with this Court a motion for remand, in which she asserted that,

while preparing her brief, she “realized that the [Estate’s] counterclaim is

still pending in the [c]ourt of [c]ommon [p]leas.”         Motion for Remand,

6/7/16, at ¶ 1.      Accordingly, Galinac claimed that her appeal could not

proceed until the counterclaim is adjudicated by the Orphans’ Court and

requested the matter be remanded. On June 13, 2016, this Court entered a

per curiam order denying Galinac’s application without prejudice to raise the




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matter before the merits panel.     Both parties addressed the issue in their

briefs.

      Galinac asserts that this Court lacks jurisdiction to consider her appeal

pursuant to Rule 341(c), which provides, in pertinent part, that “any order

. . . that adjudicates fewer than all the claims and parties shall not constitute

a final order.” Pa.R.A.P. 341(c). Because the Estate’s counterclaims remain

unresolved, Galinac argues that the case must be remanded.              The Estate

counters that this Court possesses jurisdiction to hear the appeal under

Pa.R.A.P. 342, which renders certain orders of the Orphans’ Court

immediately    appealable,   including    those   determining    the    status   of

fiduciaries, beneficiaries or creditors of an estate or trust and those

determining an interest in real or personal property.             See Pa.R.A.P.

342(a)(5) & (6).

      We conclude that the February 10, 2016 order of the Orphans’ Court

granting   summary     judgment    is    immediately   appealable      under   Rule

342(a)(5), because it is an order that determines “if an individual . . . is a . .

. beneficiary or creditor, such as an order determining if the alleged creditor

has a valid claim against the estate.”        Pa.R.A.P. 342, Note.     In granting

summary judgment in favor of the Estate, the court made a determination

that Galinac is neither a creditor of the estate, as she asserted in her eleven

claims, nor a beneficiary, as she asserted in her election against the

Decedent’s will.      Accordingly, we will review the merits of Galinac’s

substantive claims.

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       Galinac first asserts that the Orphans’ Court erred in concluding that

the statute of limitations under section 2210 of the PEF Code precludes her

from electing against the Decedent’s will.           Galinac argues that the court

should have allowed her to prove the existence of a common-law marriage

between her and the Decedent.                  Galinac argues that the statute of

limitations did not bar her election because the Decedent’s children

repeatedly told her that she was merely the Decedent’s girlfriend, that she

was not his wife, and that she had no rights.            Galinac argues that these

statements amounted to fraudulent concealment, which tolled the statute of

limitations. Galinac also argues that the “discovery rule” tolled the statute.

Both of these arguments are patently meritless.

       In Staudenmayer v. Staudenmayer, 714 A.2d 1016 (Pa. 1998), our

Supreme Court summarized the burden of proving a common-law marriage2

as follows:

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2
  In 2004, the Pennsylvania legislature amended the Domestic Relations
Code, effective January 24, 2005, with regard to “common law” marriages,
as follows:

       § 1103. Common-law marriage

       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.

23 Pa.C.S.A. § 1103. However, because the statute’s effect was only
prospective, parties that entered into a common-law marriage prior to
January 1, 2005 may still assert the validity of their union. Here, Galinac
(Footnote Continued Next Page)


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      A common law marriage can only be created by an exchange of
      words in the present tense, spoken with the specific purpose that
      the legal relationship of husband and wife is created by that.

                                           ***

      The common law marriage contract does not require any specific
      form of words, and all that is essential is proof of an agreement
      to enter into the legal relationship of marriage at the present
      time.

      The burden to prove the marriage is on the party alleging the
      marriage, and we have described this as a heavy burden where
      there is an allegation of a common law marriage. When an
      attempt is made to establish a common law marriage without
      the usual formalities, the claim must be viewed with great
      scrutiny.

      Generally, words in the present tense are required to prove
      common law marriage. Because common law marriage cases
      arose most frequently because of claims for a putative surviving
      spouse’s share of an estate, however, we developed a rebuttable
      presumption in favor of a common law marriage where there is
      an absence of testimony regarding the exchange of verba in
      praesenti. When applicable, the party claiming a common law
      marriage who proves: (1) constant cohabitation; and (2) a
      reputation of marriage which is not partial or divided but is broad
      and general, raises the rebuttable presumption of marriage.
      Constant cohabitation, however, even when conjoined with
      general reputation are not marriage, they are merely
      circumstances which give rise to a rebuttable presumption of
      marriage.

Id. at 1020–21 (citations, quotations and footnotes omitted).

      The doctrine of fraudulent concealment serves to toll the running of

the statute of limitations and is based on a theory of estoppel.       Fine v.

Checcio, 870 A.2d 850, 860 (Pa. 2005).            The doctrine provides that a
                       _______________________
(Footnote Continued)

claims that she and the Decedent entered into their common-law marriage in
September of 1992. See Deposition of Carol Galinac, 5/28/15, at 32.



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defendant may not invoke the statute of limitations if, through fraud or

concealment, he causes the plaintiff to relax his vigilance or deviate from his

right of inquiry into the facts. Deemer v. Weaver, 187 A. 215, 215 (Pa.

1936).   The   doctrine   does   not   require   fraud   in   the   strictest   sense

encompassing an intent to deceive, but rather, fraud in the broadest sense,

which includes an unintentional deception. Id. The plaintiff has the burden

of proving fraudulent concealment by clear, precise, and convincing

evidence. Molineux v. Reed, 532 A.2d 792, 794 (Pa. 1987).

      Similarly, the discovery rule also serves to toll the statute of

limitations. “The purpose of the discovery rule has been to exclude from the

running of the statute of limitations that period of time during which a party

who has not suffered an immediately ascertainable injury is reasonably

unaware he has been injured, so that he has essentially the same rights as

those who have suffered such an injury.”         Fine, 870 A.2d at 858, citing

Hayward v. Medical Center of Beaver County, 608 A.2d 1040, 1043 (Pa.

1992).

      [W]hen a court is presented with the assertion of the discovery
      rule[’]s application, it must address the ability of the damaged
      party, exercising reasonable diligence, to ascertain that he has
      been injured and by what cause. Since this question involves a
      factual determination as to whether a party was able, in the
      exercise of reasonable diligence, to know of his injury and its
      cause, ordinarily, a jury is to decide it.       Where, however,
      reasonable minds would not differ in finding that a party knew or
      should have known on the exercise of reasonable diligence of his
      injury and its cause, the court determines that the discovery rule
      does not apply as a matter of law.



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Fine, 870 A.2d at 858–59.

       Here, both of Galinac’s arguments – fraudulent concealment and the

“discovery rule” – are premised on the notion that Galinac was unaware of

the existence of her own common-law marriage and, in the case of

fraudulent concealment, that the appellees somehow prevented her from

discovering the existence of that marriage.               However, the doctrine of

common-law marriage is premised on the existence of an agreement

between the two parties to enter into a marriage.              See Staudenmeyer,

supra, at 1020 (“[A]ll that is essential [to establish a common law

marriage] is proof of an agreement to enter into the legal relationship of

marriage at the present time.”).               By definition, an agreement requires

knowledge on the part of both parties as to the subject of the agreement. 3

As such, Galinac’s argument that she was unaware of her common-law

marriage is completely at odds with her claim that she and the Decedent

were parties to such a marriage.                   Galinac’s positions are illogical,

irreconcilable and legally untenable.              Accordingly, the Orphans’ Court

properly concluded that the statute of limitations was not tolled, and that

Galinac’s election against the Decedent’s will was time-barred.



____________________________________________


3
  An “agreement” is defined as a “mutual understanding between two or
more persons about their relative rights and duties regarding past or future
performances; a manifestation of mutual assent by two or more persons.”
Black’s Law Dictionary (10th ed. 2014).



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      Finally, Galinac asserts that the Orphans’ Court erred in granting

summary judgment as to her eleven claims. Because she fails to develop

this argument in any meaningful way in her appellate brief, Galinac has

waived this claim.

      “[W]here an appellate brief fails to provide any discussion of a claim

with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”     McEwing v.

Lititz Mut. Ins. Co., 77 A.3d 639, 647 (Pa. Super. 2013), quoting

Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011). Here, Galinac’s

one-and-a-half-page argument begins with conclusory statements regarding

certain funds she claims are owed to her by the Estate. Galinac continues

with a block quote from the Orphans’ Court’s order, and concludes with a

recitation of this Court’s standard of review of a grant of summary

judgment. Galinac neither applies any relevant legal authority to the facts of

the case nor presents any basis upon which this Court could conclude that

the grant of summary judgment was inappropriate.        Accordingly, her final

claim is waived. See Pa.R.A.P. 2119.

      Order affirmed.   Motion for remand denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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