Opinion
J-A13025-16 No. 1071 WDA 2015 No. 1155 WDA 2015
09-16-2016
IN RE: ESTATE OF KENNETH C. ABBOTT, DECEASED APPEAL OF: COLIN ABBOTT IN RE: ESTATE OF KENNETH C. ABBOTT, DECEASED APPEAL OF: KATHLEEN F. NEAL, EXECUTRIX OF THE ESTATE OF KENNETH C. ABBOTT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered June 19, 2015
In the Court of Common Pleas of Butler County
Orphans' Court at: O.C. No. 2011-143 - Estate No. 10-12-0709 BEFORE: OLSON, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
In this cross-appeal, Colin Abbott (Appellant) appeals from the June 19, 2015 order of the Court of Common Pleas Butler County, granting the summary judgment motion of Cross-Appellant, Kathleen F. Neal, executrix of Kenneth C. Abbott's Estate (Cross-Appellant), and denying Appellant's motion for summary judgment. Upon review, we affirm.
The trial court summarized the factual and procedural background in its Pa.R.A.P. 1925(a) opinion, which we incorporate here by reference. See Trial Court Opinion, 8/14/15, at 1-3 (opinion issued in connection with Appellant's appeal). Briefly, on February 26, 2013, Appellant entered pleas of nolo contendere to two counts of third degree murder for the killing of his father, Kenneth C. Abbott, and his step-mother, Celeste M. Abbott. On February 27, 2013, the trial court sentenced Appellant to no less than 35 years but no more than 80 years in a state correctional institution.
The trial court issued two Rule 1925(a) opinions on the same day (August 14, 2015): one in connection with Appellant's appeal, one in connection with Cross-Appellant's appeal.
On April 10, 2013, Cross-Appellant filed a petition to declare the applicability of the Slayer Act, 20 Pa.C.S.A. § 8801 et seq., and to prevent Appellant from claiming any property as a named beneficiary in his father's last will and testament.
The Slayer Act
defines a "slayer" as "any person who participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of any other person." 20 Pa.C.S. § 8801. To prevent slayers from acquiring property or benefits from the estates of those they killed, the Slayer Act provides: ["]No slayer shall in any way acquire any property or receive any benefit as the result of the death of the decedent, but such property shall pass as provided in the sections following.["] 20 Pa.C.S. § 8802. To accomplish this goal, the Slayer Act deems slayers to have predeceased the decedent as to property which would have passed from the decedent or his estate to the slayer under the statutes of descent and distribution or have been acquired by dower, by curtesy or by statutory right as surviving spouse. 20 Pa.C.S. § 8803.
In the meantime, Appellant appealed his criminal convictions to this Court, alleging his nolo contendere pleas were not entered voluntarily, knowingly, or intelligently. On November 14, 2013, this Court affirmed the judgment of sentence. See Commonwealth v. Abbott , No. 708 WDA 2013, unpublished memorandum at 8 (Pa. Super. filed November 14, 2013). On April 15, 2014, our Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Abbott , 89 A.3d 1282 (Pa. 2014). While the criminal proceedings were pending, the civil proceedings were stayed.
Upon conclusion of the criminal proceedings, the civil proceedings were resumed. In response to a motion by Appellant, the trial court scheduled a jury trial to commence the week of May 18, 2015. Accordingly, the parties filed their pre-trial statements. Upon review of said statements, the trial court noted that the issues raised by Appellant were legal issues rather than factual ones, which did not require a factual determination by a jury. Thus, the court canceled the trial and entertained the matter as a summary judgment motion.
Upon consideration of the parties' motions, responses, and arguments, the trial court granted Cross-Appellant's motion for summary judgment on the applicability of the Slayer Act, and denied Appellant's motion for summary judgment. This appeal followed.
Appellant raises two issues for our review:
A) Does a nolo contend[ere] plea or a prison sentence constitute a conviction and dispositive evidence that a person is a slayer under the Slayer's Act, despite the express prohibition of Pa.R.E. 410?Appellant's Brief at 2-3.
B) Without a conviction by the criminal courts, does the Orphans' Court have subject matter jurisdiction and statutory authority under the Slayer's Act to hold an evidentiary hearing and make a de novo declaration that a person is slayer?
When reviewing the trial court's disposition of a summary judgment motion, this Court employs the following standard:
We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.Szymanowski v. Brace , 987 A.2d 717, 721-22 (Pa. Super. 2009) (citations omitted). At issue, here, is whether Appellant is a slayer for purposes of the Slayer Act, which is a question of law. In re Estate of McAndrew , 131 A.3d at 989-90.
The Slayer Act defines a "slayer" as any person who "participates . . . in the willful and unlawful killing of any other person." 20 Pa.C.S.A. § 8801. Once a person is charged with voluntary manslaughter or homicide, with limited exception not applicable here, any and all property or benefit that would otherwise pass to a person under a decedent's estate is placed in escrow and held by the deceased's personal representative. 20 Pa.C.S.A. § 8814.1. Upon "conviction" of a charge, the property or benefit held in escrow will not pass to the slayer, but rather, the property shall be distributed as if the slayer convicted had predeceased the decedent, id., and 20 Pa.C.S.A. §§ 8803, 8804, thus preventing a slayer from acquiring property or benefits from the estate of the person they have killed. See , n.2, supra.
Relying on Pa.R.E. 410(a)(2), Appellant first argues the trial court was statutorily prohibited from considering his nolo contendere plea as a conviction for purposes of determining whether he is a "slayer" under the Slayer Act. We disagree.
Appellant spends considerable time arguing and pointing to authorities to support the legal principle memorialized in Rule 410(a), i.e., in a civil or criminal case, that evidence of a nolo contendere plea is not admissible against a defendant who made the plea or participated in the plea discussion. However, Appellant's analysis is shortsighted. As pointed out by the trial court, Appellant's admission (or lack thereof) of guilt is not an issue here. The only issue here is whether Appellant was convicted of a qualifying crime. The record is clear on this matter: Appellant was convicted of third degree murder for the killing of his father, thus disqualifying him from receiving property or benefits under his father's will.
Appellant's fails to appreciate that our rules of evidence distinguish "between the use of a nolo plea as evidence of the fact of conviction as opposed to evidence of the commission of the underlying crime." United States v. Poellnitz , 372 F.3d 562, 569 (3d Cir. 2004) (citing Pa.R.E. 410 and Comment; Eisenberg v. Commonwealth , 516 A.2d 333 (Pa. 1986)).
For example, in Strain v. Commonwealth , [784 A.2d 845 (Pa. Cmwlth. 2001)] the court explained that "our Supreme Court has upheld the use of a conviction entered on a plea of nolo contendere as evidence in a subsequent civil matter where it was the fact of conviction, not the plea, that was the operative fact relied upon." Id. [at 848] (citing Eisenberg ). The Strain court went on to explain that in that case "[s]uspension of a licensee's operating privilege under the Compact ... does not turn on whether the licensee has admitted or denied guilty; it is the conviction that triggers the provision." Id .; see also Bourdeev v. Commonwealth , 755 A.2d 59, 61-62 ([Pa. Cmwlth.] 2000); Commonwealth v. Boyd , 221 Pa. Super. 371, 292 A.2d 434, 435 (1972) ("Where a plea of nolo contendere is tendered by the defendant and accepted by the court, it is not the province of the court to occupy itself with the question of guilt or innocence."); Ferrelli v. Commonwealth , 783 A.2d 891, 893 ([Pa. Cmwlth.] 2001).Poellnitz , 372 F.3d at 569. Thus, the trial court did not err in considering the operative fact of Appellant's third degree murder conviction for purposes of determining Appellant's ability to receive under the will.
Appellant also ignores that, upon entry of the nolo contendere plea, a judgment of conviction follows. This is a well-established concept. See , e.g., Commonwealth ex rel. District Attorney v. Jackson , 94 A. 233, 235 (Pa. 1915); Buck v. Commonwealth , 107 Pa. 486, 489 (Pa. 1884); Commonwealth v . Smith , 30 A.2d 339, 346-47 (Pa. Super. 1943); Commonwealth v. Ferguson , 44 Pa. Super. 626 (1910). Appellant nonetheless argues the word "conviction" should be construed strictly, as understood in criminal statutes. Specifically, Appellant argues, that for purposes of the Slayer Act, the word conviction requires an ascertainment of guilt. Because there is no ascertainment of guilt in a nolo contendere plea, nolo contendere pleas do not qualify as convictions. Appellant provides no authority for this contention, nor do we find any in our research. Indeed, Appellant relies on Commonwealth v. Kimmel , 565 A.2d 426 (Pa. 1989) and emphatically criticizes the trial court for its failure to acknowledge Kimmel. Reliance on Kimmel is misplaced. Appellant fails to appreciate that Kimmel does not deal with nolo contendere pleas, or the Slayer Act. As such, Kimmel is not controlling. To the extent Kimmel provides a definition of what "conviction" generally means, Appellant fails to appreciate that the definition provided therein is a general statement of law, and was not intended to cover all instances. As noted above, a criminal conviction will follow a nolo contendere plea. See , e.g., Ferguson , supra.
Additionally, nowhere did Appellant reconcile his proposed definition of "conviction" with the Slayer Act's provision that expressly states that the Act shall "be construed broadly in order to effect the policy of this State that no person shall be allowed to profit by his own wrong, wherever committed." 20 Pa.C.S.A. § 8815.
See also King v. Schroeder , 2016 WL 127787, at *5 (January 12, 2016) (Under Pennsylvania Slayer Act, plea of nolo contendere to voluntary manslaughter serves as a bar to recovery of the annuity proceeds).
In conclusion, because Appellant was convicted of third degree murder of his father, Appellant, under the Slayer Act, is barred from receiving any benefit from the father's estate. Accordingly, the trial court did not err in so concluding. Appellant, therefore, is not entitled to relief. Accordingly, we affirm the order of June 19, 2015 and direct that a copy of the trial court's August 14, 2015 Rule 1925(a) opinion issued in connection with Appellant's appeal be attached to any future filings in this case.
In light of our disposition, we need not address Appellant's second issue, see supra , and Cross-Appellant's cross-appeal. Cross-Appellant stated its claim as follows: "The Estate was at all times ready, willing and able to present evidence that Colin Abbott murdered Kenneth Abbott and, therefore, is precluded from receiving any benefit from the Kenneth C. Abbott Estate." Cross-Appellant's Brief at 42. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/16/2016
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In re Estate of McAndrew , 131 A.3d 988, 990 (Pa. Super. 2016) (footnote omitted).