Tosi v. Kizis
85 A.3d 585
| Pa. Super. Ct. | 2014Background
- Wife filed for divorce and equitable distribution in Luzerne County; Husband did not answer.
- Parties filed affidavits of consent to divorce, establishing grounds for divorce in 2006 and 2008.
- Husband died on August 19, 2008, after grounds were established but before a decree.
- Wife later filed to discontinue the divorce action under Pa.R.C.P. 229(c); case was discontinued in December 2008.
- Husband’s estate sought to strike the discontinuance; initial appeal was quashed for lack of standing.
- Appellant substituted for Husband; multiple petitions to strike the discontinuance were denied; trial court ultimately denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 229(c) allows discontinuance after grounds established | Kizis argues §3323(d)(1) bars discontinuance post-grounds, requiring distribution proceedings. | Tosi argues statute preempts Rule 229, forcing equitable distribution rather than voluntary discontinuance. | Rule 229(c) permits discontinuance despite established grounds. |
| Whether §3323(d)(1) precludes application of Rule 229 | Kizis contends §3323(d)(1) governs economic rights, overriding Rule 229. | Tosi argues §3323(d)(1) mandates distribution in probate-like regime, not discontinuance. | §3323(d)(1) is inapplicable; Rule 229 applies. |
| Whether Husband properly raised/preserved equitable distribution claims | Kizis asserts the estate preserved any rights via prior filings. | Tosi contends insufficient preservation of distribution claims. | Not necessary to decide merits; §3323(d)(1) not controlling. |
| Whether court improperly relied on Rule 229 to discontinue | Kizis claims the court erred by treating Rule 229 as controlling without full hearing. | Tosi contends hearing and arguments were provided; Rule 229 applied. | No abuse of discretion; hearing conduct and record support denial of strike. |
| Whether discontinuance caused unreasonable prejudice to Appellant | Kizis argues discontinuance would prejudice his rights. | Tosi argues no demonstrated prejudice under Rule 229. | Appellant failed to prove prejudice; court did not err. |
Key Cases Cited
- Yelenic v. Clark, 922 A.2d 935 (Pa. Super. 2007) (abates historically on death absent grounds; amendments allow continuation when grounds exist)
- Gerow v. Gerow, 962 A.2d 1206 (Pa. Super. 2008) (divorce action may continue after death where grounds exist)
- Taper v. Taper, 939 A.2d 969 (Pa. Super. 2007) (subject to equitable distribution; context for §3323(d)(1))
- In re T.P., 78 A.3d 1166 (Pa. Super. 2013) (well-settled doctrine: trial court can be affirmed on any valid basis)
- Hopewell v. Hendrie, 386 Pa. Super. 264 (Pa. Super. 1989) (Rule 229 discretion; prejudice required for strike)
- Fancsali ex rel. Fancsali v. Univ. Health Ctr. of Pittsburgh, 761 A.2d 1159 (Pa. 2000) (abuse of discretion standard; discretion in discontinuance context)
- Reece v. Reece, 66 A.3d 790 (Pa. Super. 2013) (divorce actions generally governed by civil procedure rules)