Shell, I. v. Shell, B.
304 A.3d 401
Pa. Super. Ct.2023Background
- Isabel and Paul Shell married in 1988, separated in May 2019, and never resumed cohabitation. No children together.
- Isabel (Wife) filed a divorce complaint under 23 Pa.C.S. § 3301(d) (irretrievable breakdown / one-year separation) in May–June 2021; no §3301(d) affidavit in Rule 1920.72 form was filed and Paul (Decedent) never answered.
- Wife also sought special relief regarding a transfer-on-death investment account (she had been named beneficiary until Feb. 2020). By agreement, the trial court temporarily reinstated Wife as sole beneficiary.
- Decedent died on August 9, 2022; Administrator of Decedent’s estate was substituted. Wife praeciped to withdraw/discontinue the divorce; Administrator moved to set aside the praecipe.
- The trial court held §3323(g)(3) requires an affidavit in the §3301(d)/Rule 1920.72 form to establish grounds when a party dies, found no such affidavit was filed, and discontinued the divorce action.
- Administrator appealed, arguing (1) Wife’s complaint verification or petition sufficed as the requisite affidavit, and (2) Wife is judicially estopped from denying grounds were established.
Issues
| Issue | Plaintiff's Argument (Administrator) | Defendant's Argument (Wife) | Held |
|---|---|---|---|
| Whether grounds under 23 Pa.C.S. § 3323(g)(3) can be established without a §3301(d) affidavit in the Rule 1920.72 form (i.e., whether Wife's complaint verification or petition sufficed) | The statute does not specify form; Wife’s verification and petition are "affidavits" under 42 Pa.C.S. § 102 (unsworn verification subject to 18 Pa.C.S. § 4904) and thus satisfy §3323(g)(3). | §3323(g)(3) requires the filing of an affidavit as contemplated by §3301(d) and Rule 1920.72/Rule 1920.42 procedural requirements; compliance with those procedures is necessary to avoid abatement. | Court affirmed: §3323(g)(3) requires a §3301(d) affidavit in the Rule 1920.72 / Rule 1920.42 context; Wife’s verification/petition did not satisfy that requirement. |
| Whether Wife is judicially estopped from denying that grounds were established because she earlier stated "grounds here have been established" in her petition for special relief | Wife previously asserted grounds to obtain interim relief; Administrator relied on that statement, so she cannot now deny grounds. | The petition’s statement did not allege the specific §3301(d) elements (irretrievable breakdown and one‑year separation) in affidavit form; the court’s interim order simply reinstated the beneficiary without adjudicating grounds. | Court affirmed: judicial estoppel not established—the petition did not constitute a successful, inconsistent assertion of the discrete §3301(d) elements and the court made no adjudication of grounds. |
Key Cases Cited
- In re Estate of Easterday, 209 A.3d 331 (Pa. 2019) (Rule 1920.42 procedural requirements apply to §3323 analysis; Supreme Court rejected argument that §3323 dispenses with timing/form requirements).
- Yelenic v. Clark, 922 A.2d 935 (Pa. Super. 2007) (divorce abates on death absent §3323 grounds).
- Reece v. Reece, 66 A.3d 790 (Pa. Super. 2013) (divorce actions must conform to statutory and procedural rules).
- Tosi v. Kizis, 85 A.3d 585 (Pa. Super. 2014) (discusses §3323(d.1) and voluntary discontinuance; procedural rules govern).
- Black v. Labor Ready, Inc., 995 A.2d 875 (Pa. Super. 2010) (judicial estoppel elements and requirements).
- Bugosh v. Allen Refractories Co., 932 A.2d 901 (Pa. Super. 2007) (judicial estoppel purpose: prevent procedural abuse).