*1 1256 contract,

heading used in the the court Timothy Bahl, BAHL, John that it came this con- specifically stated Jennings, M. Catherine Jeanne reading agree- from a plain clusion Bacon, Appel and Theresa Horton of the pertinent ment and consideration lants, testimony, that Po- trial which established

cius, Pines, through expertise Van v. nursery nev- concerning the stock but was FARMS, INC., Appellee. LAMBERT responsible expected responsi- to be er finding tax advice. This rendering ble Pennsylvania. Superior Court amply supported by the record. Dec. Submitted Finally, Appellants con April trial their striking tend the court erred Filed a jury trial. Without citation demand law, Appellants argue supporting case jury trial the waiver of which was of no promissory

contained notes is do It is We well-settled

effect. right may trial jury to a be waived express

either conduct or statement. Co., Ins. 77 Pa.

Krugh Lycoming v. Fire Wise, (1874); Rodney Pa.Super. (1985); Zan 500 A.2d 1187 Warden v.

ella, 137, 423 Pa.Super. A.2d Scott,

(1980); Downs v. (1963). Here, Krugh, A.2d 908 jury trial waiver is contained in i.e., parties,

contract between the no see reason not

promissory notes. We set forth principle

to follow Krugh. The court

Supreme Court in finding

did not err trial. jury to a

waived Judgment affirmed.

¶ BECK, J., in the concurs result. *2 Kocsis, Athens, appellants.

John Barrett, Athens, appellee. David J. POPOVICH, TODD, Before OLSZEWSKI, JJ.

TODD, J.: ¶ 1 us involves an The matter before partition Ap- action to real estate filed Bahl, Bahl, pellants Timothy John Bahl, Jennings, Jeanne M. Hor- Catherine Bacon, ton and seeking Theresa their fa- ther, William J. Bahl’s intestate share of Farms, Appellee farm sold to Lambert trial, Following Inc. in 1991. deni- motions, Appellants’ post judg- al of Appellee. Upon ment was entered for re- view, we reverse.

¶2 The relevant factual background 1991, group as follows: In of the heirs of wife, Bahl, William Bahl and his sold family Township, farm in Forks Sulli- County, van Appellee. The farm had in family many years. been the Bahl predeceased Rose and after Rose died intestate in title to the farm grandchildren vested in their children and pursuant virtue of intestate succession governing intestacy to the statutes Pennsylvania, §§ 2101-2110. When the farm was sold to grant- to the farm deed listed the McDonald, Warman, ors as Zita Geraldine Friedah and Genevieve Kenneth husband, Rosemary her Holland and Mi- husband, Holland, chael her Patricia Blasi Blasi, husband, P. Joseph and Alex Bahl, Bahl, Beverly Jr. and J. his wife. The deed did not list J. any Appellants’ father who died Appellants, his heirs.1 ¶3 ac- liam Bahl from other members Appellants brought an J. “Mom,” various partition against Appellee seeking referring to Rose listing Bahl as obituary an intestate Bahl’s notices J. share William J. other Appellants allege sibling children William interest the farm.2 *3 Bahl, father, Bahl, report and for J. that their J. the Rose cards William William was “parent,” Bahl signed child Bahl William Bahl last born to William Rose and, therefore, including Wil- are to an estate distribution notices his heirs entitled heir, liam Bahl as an documents partition of their intes- J. order father’s to Bahl contain- they correspondence of farm as omit- William J. tate share the were as a ing position references to his ted from The case was tried various the deed. Vanston, the other children of William sibling the Brendan before Honorable J. Bahl, baptismal County Rose and William J. Bahl’s Judge President of the Sullivan Pleas, Bahl as listing an and Rose of Common who entered certificate William Court parents. February on Appellee Order favor of Appellants post-trial re- 2000. moved ¶ although the Appellee argues lief, by opin- Judge Vanston denied purport Appellants documents offered This April ion and order on natu- that William J. Bahl was the show timely appeal followed. Bahl, in actu- ral son and Rose of William ality, Bahl the out-of-wed- William J. ¶4 Appellants only question raise one daughter, lock son of William Rose’s for our consideration: Bahl, to the farm Zita who returned home son of Whether J. was the William age at the of 21 a newborn unmarried with Bahl, so, and, if Rose and Sr. William alleges than infant. that rather Appellants whether the entitled community face criticism the inevitable an action in Partition of Real Estate 1920’s, Bahl decided against Appellee for their father’s intes- son, a J. Bahl as their own raise William a tate share of the value of farm owned children, the other natural Bahl sibling to Appellee. Zita Bahl. including 4.) Brief, (Appellants’ at ¶ support position, Appellee of its deposition testimony of Gene- 5 William Bahl died 1980. At the offered the J. Friedah, daughter partition action was tried before vieve of William time (children Vanston, of Zita Bahl. only younger Rose Bahl and sister Judge siblings Bahl) Friedah, time old at the who were still who was William and Rose that when she deposition, were Friedah and Geral- of her testified alive Genevieve farm, living on she support Peti- was 17 and dine McDonald. their re- tion, specifically Zita Bahl into remembered submitted evidence living baby boy after turning home with numerous documents away. that her recalled under oath position that their William J. She Rose, Zita’s parents, named at law of was a son and heir William, own baby raised him as their Rose Bahl. record before us contains own, as their and treated including baptized to Wil- had him many documents letters unclear, any Although appears 2. We note that record is devoid the record is grantors that those listed as objection seven-year individuals de- mention of living at the deed were the heirs of Rose Bahl lay filing Appellants’ partition action. sale, excluding the heirs of Wil- time of J. liam Bahl. as their him their lives children in and claimed sibling him as the of their other own child. commu- to avoid embarrassment and order that to

nity criticism. She further testified first look to guidance, 11 For we formally knowledge, her never proof regarding of this decisions Court two (N.T. child. adopted him as their own of intestate suc 6/2/98, at Deposition of Genevieve Greenwood, In In re Estate cession. 6-10.) that: held despite trial that Appellee argued by a child proof required the standard documentary the existence of the out of wedlock to establish bom and Rose Bahl raised William *4 by, from and to intestate succession as one of their children to avoid J. Bahl the fa- through person alleged to be embarrassment, in the face Genevieve claimant rises to a level ther of the to testimony, Appellants Friedah’s failed Pa. convincing” evidence. 20 “clear and natu- prove that William J. Bahl was their 2107(c)(3)[.] C.S.A. (or formally adopted) According- ral son. Hoffman, 320 (citing Estate Id. at ly, Appellee maintains that William J. (1983)). The Pa.Super. 466 A.2d an Bahl’s heirs are not entitled to intestate applied should be the same standard to be family Appellee. share of the farm sold to maternity. Accord- paternity or prove to court, upon 9 The trial review of the Appellants were re- ingly, we hold that evidence, documentary depo- as well as the convincing prove by to clear and quired testimony Appel- denied sition Bahl, and not Zita evidence that Rose petition post-trial lants’ and motion Bahl’s mother. was William J. opinion, Judge In held relief. Vanston Hoffman, this Court 12 In Estate of testimony personal of her Friedah’s rejected the case of an individu heard and J. Bahl’s ori- recollections about William who as a “foster child” al described gins provided competent compel- more from the claimed inheritance ling evidence than the documents submit- their own her in and raised her as took by Appellants purporting prove ted to adopting her. This Court later without Bahl child of William J. was the natural holding of Es summarized the facts (Trial Opin- William and Rose Bahl. Court in re Estate Sim tate In of Hoffman 2.) ion, 4/26/2000,at mons-Carton, (1994),as follows: case law 791 10 Our review of the relevant stated, challenges in this area reveals that to ma- briefly Hoffman, facts of The ternity paternity prov- DeLong, appel- that Ruth H. reveal been ing Hoffman, shortly entitlement to inheritance have after her birth lant in relatively majority uncommon. The vast the home of her in 1927 was taken to 'Hoffman, sister, precedent paterni- Mary concerns cases where mother’s Husband, alone, Sidney Hoffman. maternity, Mary’s are S. ty paternity Mary Sidney by challenged, such as where a named father Ruth was raised marriage them until her in the moth- and lived with denies an action However, case, around the time in 1946. present support. er for child thirteen, she learned contrast, Ruth twelve or atypical an factual situa- was presents “Aunt” Marian that her child accident the heirs of a deceased tion where natural mother. in fact her that his natural Mentch was attempting prove by Mary or adopted him Ruth was never couple who raised parents were the fact, Mary testimony Friedah Sidney. Sidney died 1953 and of Genevieve Hoffman, died 1978 Owen supports Appellee’s further contention Owen, Sidney’s died. whose brother contrary. Accordingly, find no him, predeceased died without wife abuse of the court’s discretion its leaving issue. Ruth claimed to be Appellants determination failed- Hoffman, daughter Sidney natural S. prove convincing clear and attempt in an to claim entitlement to that J. Bahl the natural child residuary Hoffman’s one-half of Owen and Rose Bahl. estate. The trial court found that the However, analysis our must DeLong claim of Ruth had not been here, argue not end next sustained clear and estopped should be de dence. The trial court stated: nying that were merely The record indicates that Sid- light Bahl’s William J. ney Mary illegitimate took their throughout Bahls’ conduct their lives as niece into their home to raise as their parents. Appellants J. Bahl’s as own child. There were no facts tend- documentary evi sert voluminous ing allegation claimant’s record, coupled deposi dence of *5 Sidney that was her natural father. testimony of all of Geraldine All presented of the evidence in this that support proposition which the case is consistent with the fact that and Rose wanted the world to view Mary Sidney raising were claim- J. Bahl as their warrants a ant as their foster child. was, all legal determination that he

Id. at This court “that observed purposes, including intents and intestate paternity lips claims of made after the of succession, their son. We alleged father have been sealed death are in that class of claims ¶ Eberharter, 16 In v. Curran subjected scrutiny must be to the closest (1987), 521 A.2d 474 we de- only and which can allowed on strict be equitable estoppel: fined the doctrine of proof injustice so will not be done.” Equitable estoppel party a arises when at Id. representation intentionally acts or Simmons-Carton, In 644 A.2d re Estate of through culpable negligence, or induces at 796. ex- another believe certain facts

¶ justifiably findings 13 Where the of the ist and the other relies belief, judge supported by competent upon evi acts such so that the latter dence, appellate per- “an court will not reverse if prejudiced will be the former is discretion, in the absence of an abuse of a deny mitted to the existence of such evidence, capricious disregard or an er facts. Hoffman, 466 A.2d

ror law.” Estate of (citation omitted). The con- Id. 479-80 omitted). (citations at 1090 cept paternity by estoppel has been ¶ where a upheld numerous circumstances Hoffman, inAs Estate support child from a child or mother seeks record here indicates that purported father who has held himself out grandson into Rose Bahl took their then- community to the as the child and home to raise him as their own child. attempts deny paternity but then when supports None of the evidence of record sought. Brinkley King, See v. Appellants’ claims that their father was (1997) 241, 249, Pa. the natural child of and Rose. he has knoAvn estoppel being em- told father (holding that the doctrine of that, is not his father. all his life fact regardless bodies the fiction biolo- gy presumption paternity, and the (citations 530, 741 A.2d omit- Id. at at 724 person cared is the who has for the child ted). parent)

child’s and citations therein. paternity Although the doctrine of originally was established by estoppel Brinkley, repeated the Court children, Appel- of minor circumstances, protection per that “under certain a apply that it this case argue lants should estopped challenging son might be in this despite the fact the “child” case paternity person his or where has majority reached and died be- already had accepted given person her conduct as the Ap- litigation fore this was commenced. (quoting father of the child.” Id. Jones (1993)). rely our in In re pellants decision Es- Trojak, Pa. 634 A.2d 201 Simmons-Carton, supra, where tate Similarly, in v. McCand Freedman concept paternity es- examined less, 539 Pa. A.2d 529 child toppel applied to a deceased who Court stated: majority attained merely Estoppel actions is succession. In In re Estate intestate legal determination that because of Simmons-Carton, ques- we examined person’s (e.g. holding conduct out the tion of whether both the natural mother child) own, supporting child as his purported qualified natural father person, regardless true bio- of his be named co-administrators estate status, logical permitted will not be daughter, Dory, of their who died intestate deny parentage, nor -will the child’s age at the of 20. an automobile accident has in this con- participated mother who mother, in an Mirjam, at- The decedent’s *6 permitted party duct to a third be sue husband, tempt prevent estranged to claiming for support, par- that the third Donald, inheriting by from intestate suc- ty is father.... the true doctrine [T]he Dory, from that he was cession denied of estoppel paternity is aimed actions Dory’s natural father. She testified that at “achieving fairness as between the Dory in the Nether- given she had birth to parents them, by holding mother both January of lands in 1965 and that she had prior to their conduct re- year Mirjam testi- met Donald the before. garding paternity the of the child.” she had been im- fied that believed she 591-92, Donald, Id. 654 A.2d than pregnated at at 532-33. More someone other Behers, alleged recently, in Fish v. Pa. to the provide but she refused father’s The record is un- Supreme A.2d Court natural name. to Mir- that de- had access public policy affirmed its Anew clear whether Donald prior period time right jam during mands that children have the to cer- relevant birth, acknowledged par- Dory’s Mirjam but tainty relationships in their with their to ents, may have sometime stating: she seen Donald that at 793. spring in the 1964. policy

Estoppel public is based Sim in know- The record in In re Estate that children should be secure revealed, however, that ing are. If a certain mons-Carton who family together as a until person parent parties acted as had lived has child, separated 1987. Mirjam and Donald the child should bonded support for provided primary required potentially to Donald not be suffer years from the first may that come damaging trauma and Rose Bahl in- Dory’s years premise life and for at least two that William paid tended, throughout their Id. in their college Following lives and Dory’s tuition. deaths, regard to J. Bahl as their Dory’s of administra- death letters probate documents filed Mirjam. own son. The to Donald’s were issued clearly that following Rose’s death indicate name was added soon thereafter and Mir- beneficiary a of her William J. Bahl was Mirjam jam disputed peti- the addition. estate, inheriting portion equal a to those Register of to remove tioned the Wills inherited her other children. To now Donald’s name as co-administrator of nearly after Appellee, allow estate, Dory’s alleging that Donald was not death, attempt disprove Wil- Rose’s Dory’s Register natural father. The liam and Rose Bahls’ clear intent raise revoked the letters of administration Wills and treat J. Bahl as their ap- containing Donald’s name and Donald rejection public policy of the would be Id. at 794. The trial court re- pealed. many our Courts have affirmed times: Wills’ Register versed the decision right expect the law child has the affirmed, holding this Donald Court his protect rights will his and those of openly Dory out proved he had held regard with to those whom the world heirs daughter throughout to be his her life and Accordingly, parents. knows as his therefore now should be considered her demonstrated, Appellants have find purposes father for of descent and inheri- estoppel, through concept equitable Mirjam Accordingly, estopped tance. son of J. Bahl was the Wil- denying Dory. Donald’s liam and Rose Bahl for Id. at to inherit from them intestate ¶21 that our Appellants argue holding succession. in In re Estate Simmons-Carton argue applicable to the case before us. We further § agree. Nothing presented in the evidence 51023 and Pa.C.S.A. 2107,4 § disproves read in the context of the party either when (3)If legiti- clear 5102. Children declared to be there is mate dence the man was the father child, may prior court de- (a) include a *7 be le- General rule.—All children shall paternity. gitimate termination of irrespective the marital status of and, § every 23 Pa.C.S.A. 5102. parents, case where chil- their wedlock, they enjoy dren are out of shall born §2107. wedlock. Persons born out of rights they privileges all as if during parents been bom the wedlock of their (a) purposes of de- Child of mother. —For (re- except provided Title 20 as otherwise by, through person born out scent from and decedents, fiduciaries). lating to estates and wedlock, he shall be considered the child of (b) paternity. pur- Determination of —For his mother. poses prescribing benefits to children born by, through the out of wedlock from and (c) purposes Child of father. —For of de- any paternity shall be determined by, through person out from and bom scent ways: following one of the wedlock, the child of he shall be considered (1) a child born out of If the identity of the father has his father when each wedlock shall have married other. any following If, child, (2) been determined in one during the lifetime of ways: convincing evi- is determined clear (1) parents of a child born out of If the openly holds out the dence that the father wedlock shall have married each other. child to be his and either receives the child child, (2) during lifetime of the support If provides for the into his home openly holds out the child be father child. us, deposition testimony of Genevieve support argument The record before their par- only Appellants’ to buttress and Rose Bahl were serves William Friedah for J. raised as by estoppel position of William J. Bahl that William Bahl was ents brother, her purposes nephew, of intestate succession. Friedah’s parents, and Rose. William evaluating of 20 application § § 2107 and Pa.C.S.A. ¶ Therefore, agree while upon by the father purported also relied pro- failed trial court Simmons-Carton, we con In re Estate of convincing duce clear cluded: child of Bahl was natural J. William statutory ap- language, The when above Rose, we find that William ease, to the facts of this indicates plied produced by sides of record both dence certainly Donald be held to would is clear unquestionably for of a deter- Dory’s father be lifetime, during J. Bahl’s paternity. mination of As the child of their openly Rose held him out to be Donald, Dory would to inherit be able pro- him into received their home from him. It follows that Donald should for him. is de- The record vided Dory to inherit under the be able any time any evidence that at void intestacy provisions §of 2107. lives, their upon or even Simmons-Carton, 644 A.2d In re Estate of deaths, Bahl denied be- at 798. parents. J. J. Bahl’s ing William however, that argues, here therefore have the Bahl’s heirs must question the statutes were enacted father’s share to claim their fair intestate died, nine after Rose Bahl According- Rose. as a child of William and rendering thereby inapplicable them to the February ly, the trial court’s order of Statutory case before us. We denying Appellants’ petition parti- Act of Construction Pa.C.S.A. hereby reversed and remanded tion is 1926,provides: “No con- statute shall be with this proceedings additional consistent clearly and strued to be retroactive unless Opinion.

manifestly As- so intended the General and remanded. Jurisdic- 27 Reversed sembly.” The statutes make at issue here relinquished. provision refroactivity and are no therefore, strictly speaking, inapplicable ¶ OLSZEWSKI, J., concurring files a judice.

the case sub opinion. ¶ Nonetheless, dispute no there is ample, uncontroverted documen- OLSZEWSKI, J., Concurring: record, report including tary evidence *8 certificate, my esteemed

cards, agree no- I baptismal estate 1 While with obituaries, the deci- colleagues that we must reverse and as well as letters tices court, for reasons members, of the lower I do so all demonstrate sion among stated; thus, sep- I write than those lifelong intent of and other arately. son. treat J. Bahl as their Bahl to home, (3) convincing evi- clear If there is and his receives child into of the the man the father dence that openly to be his holds child out child, may de- prior court which include a which shall

provides for the child paternity. termination clear and be determined § 2107. dence. ¶ 2 I agree majority’s separated, provided support assertion ties that the trial court did not abuse its discre- the child. id. The See Court determined tion in decision that appellants its failed to that the child’s equitably mother was es- prove by clear and convincing topped from denying paternity when she that William J. Bahl was the natural or had never mentioned the child’s life adopted child of might William and Rose Bahl. I that he not be the father. See id. at agree case, § also that 23 present Pa.C.S.A. 5102 and In the it is clear § inapplicable 2107 are to the case before they William and Rose knew that However, us. I William, would contend that grandparents under were the not his alone, those parents. They circumstances simply forego would be chose to precedent constrained to follow the estab- humiliation associated with illegitimate his in Hoffman, 1920’s, lished In re Estate 320 status in the him raise as their (1983). Pa.Super. such, 466 A.2d 1087 they The own. As were William’s “foster majority rejects In re Hoffman, parents,” Estate adopted par not his natural or inapplicable ap- to these facts Hoffman, because ents. See In re Estate pellee estopped denying should be parentage light William J. Bahl’s in of the ¶ However, any party in interest Bahl’s conduct throughout grandson’s should have brought these claims within life. I cannot five of distribution of either William majority’s opinion, effect, 3521; The or Rose Bahl’s estate. 20 Pa.C.S. adoption” would create “common Deposition law see Genevieve Friedah at 19. purposes. inheritance This is direct Because the beneficiaries never raised this Hoffman, issue, conflict with In re Estate the lower court should not have re- clearly that “foster chil- viewed it. properly contesting established Instead of beneficiaries, dren” raised relatives not proposed issue as parties sim- by Pennsylvania’s defined ply property. laws intes- sold the (The tate succession. id. See at 1090 addition, appellee had at least appellee Court determined that was the constructive notice of William J. Bahl’s Hoffman’s “foster child” their is- property. interest in the no Constructive sue). majority this reached decision party tice what a “could have learned though even Ruth Hoffman DeLong estab- inquiry person possession clearly lished that the Hoffman’s held her who, believe, they others had reason to community daughter. out to the as their title, might knew facts which affect id. See appeared also appropriate what ¶ Instead, majority relies on In re indexes the office of the recorder of Simmons-Carton, Estate deeds.” Mid-State Bank and Trust Co. Intern., Inc., to establish es- A.2d Globalnet A.2d toppel in maternity (Pa.Super.1998). intestate cases where Estate documenta However, paternity is at issue. Orphan’s tion recorded in the Court lists and/or Bahl, clearly distinguishable case is and in William J. as the son of Rose applicable present to the facts. The father proposes distribution of of the estate in In re Estate him. Orphan’s Simmons-Carton be Court of Sullivan Coun throughout daughter’s ty, lieved life that Pennsylvania 44th Judicial District *9 he was her natural father. See id. at 793- September Number 6 Term 1969. Estate fact, mother, 23, 1988, 94. he married August the child’s documentation dated lists lived with a family par them as until the Bahl’s William J. issue as heirs to the Thus, appellee Estate of Rose Bahl. would appellants’ notice of

have constructive

intestate claim to Rose Bahl’s farm when

they purchased it in 1991. circumstances, 7 Under these permitted appellee

court should not have challenge William J.->Bahl’s status Therefore, agree

that of issue. I denying appellants’

the trial court’s order partition

petition should be reversed the case remanded.

TRENTON CHINA POTTERY & SERVICE,

AIG CLAIMS

INC., Petitioners,

v. AP

WORKERS’ COMPENSATION (Mensch

PEAL Pub BOARD Mutual), Respondents.

lic Service Mensch, Petitioner,

Lawrence Compensation Appeal

Workers’ Board

(Trenton Pottery), China

Respondent. Pennsylvania.

Commonwealth Court of

Submitted Oct. April

Decided