Copyright 2002-2003 Daniel
B. Evans. All rights reserved.
Last updated: 9/18/2003
On September 17, 2003, the Supreme Court denied the petition for allowance of appeal. (Order of 9/17/2003, No. 628 EAL 2002.) This means that the Supreme Court was not willing to hear the appeal and the Superior Court decision stands.
However, the litigation is not over. I have consulted with the fiduciaries and beneficiaries under the will dated August 1, 1984 (which has been probated in Florida where the decedent was domiciled) and we will go back to the beginning and start over, if necessary.
It is possible to go back to the Orphans' Court and start over because (a) the Superior Court decision was based on a lack of standing and lack of jurisdiction, which means that it not a decision on the merits and not res adjudicata, and (b) the normal one year statute of limitations on appeals from the Register of Wills does not apply when there has been a fraud on the Register. Kirkander Estate, 490 Pa. 49, 415 A.2d 26 (1980).
Further progress will be posted as it develops.
On December 13, 2002, I filed a petition for allowance of appeal from the decision of the Superior Court. Four grounds are listed for the appeal:
The decree of the lower court denying probate of the 1993 will because Mark Resop (the proponent of the will) had "unclean hands" should be affirmed when there was evidence that the original probate was obtained by fraud, regardless of whether or not Julie Palley (the objectant) had standing.
Under recent decisions of the Supreme Court applying similar statutes, standing to appeal from the Register of Wills is NOT jurisdictional and cannot be raised for the first time by the Superior Court if it was not raised in the lower court.
Under previous decisions in Pennysylvania and other states, an intestate heir should have standing in a will contest regardless of the existence of previous wills or, if an earlier will is to be recognized, the charitable trust under the will should not fail for want of a trustee.
The stipulation that the signature of the decedent was authentic did not end the will contest when there was evidence that the signature was obtained by fraud and undue influence.
(My thanks to Thomas D. Schneider for his help in the preparation of this petition.)
On December 30, 2002, attorneys for Mark Resop filed a brief in opposition to the petition for the allowance of an appeal.
For the benefit of other lawyers in Pennsylvania who may be interested in the case and the issues raised by the case, I have made available copies of the following documents:
The original opinion of the Orphans' Court of Philadelphia (by Bonavitacola, J.).
The appellee brief I filed in the Superior Court as appellee.
The opinion of the Superior Court (by Del Sole, P.J., and Todd and Montemuro, JJ.) dated September 9, 2002.
The application for reargument that was filed in the Superior Court and denied on November 13, 2002.
The petition for allowance of appeal that was filed in the Supreme Court on December 13, 2002.
The brief in opposition to the petition for allowance of appeal that was filed by attorneys for Mark Resop on December 30, 2002.
The order of the Supreme Court denying the petition for allowance of appeal on September 17, 2003.
I may add additional documents to this page as the case progresses.
Evans Law Office
Daniel B. Evans, Attorney at Law
P.O. Box 27370
Philadelphia, PA 19118
Telephone: (866) 348-4250