J-A24026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGIE ANNE MARRONE, GUARDIAN OF THE                 IN THE SUPERIOR COURT OF
ESTATE OF EDWARD S. KAPCZYNSKI, AN                         PENNSYLVANIA
INCAPACITATED PERSON

                        Appellant

                       v.

FRANK DALONZO, JR., AND TINA M. SABOL

                        Appellees                          No. 404 WDA 2017


                  Appeal from the Order Dated February 17, 2017
                 In the Court of Common Pleas of Allegheny County
                        Civil Division at No(s): GD-15-008026

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 21, 2017

     Appellant    Margie    Anne    Marrone,   guardian   of   the   estate   of

Edward S. Kapczynski, an incapacitated person, appeals from the order

entered on February 17, 2017, that entered summary judgment in favor of

Appellees Frank Dalonzo, Jr., and Tina M. Sabol (Kapczynski’s biological

cousins) in Appellant’s action to rescind a transfer of real property and for

damages for conversion of personal property.         Marrone contends that

Dalonzo and Sabol took advantage of Kapczynski by having him sign his

property over to them at a time when he was mentally incapable of making

decisions for himself. We reverse and remand.

     We recite the facts as stated by the trial court, which adopted the facts
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from a brief filed on behalf of Kapczynski.1

       Kapczynski worked as a draftsman in a bridge manufacturing

company, where he was required to perform at a high intellectual level. He

acquired the Moon Township property at issue in 1974 and personally

designed and supervised the construction of his home on that property. The

property was free and clear of liens, mortgages, and encumbrances, and

valued at approximately $220,000.00.

       Kapczynski has alleged that, in or around 2009, Kapczynski became

seriously ill and was hospitalized.              After he was transferred to a

rehabilitation center, Appellees Dalonzo and Sabol acted as his agents.

During this time, Appellees approached Kapczynski and proposed that if

either party died, the other would take title to that party’s home for

consideration of $1.00. Kapczynski did not accept the proposal at that time.

Trial Ct. Op. at 1-2.2

       On March 10, 2010, Kapczynski was released from his job due to

layoffs. Trial Ct. Op., Ex. A. On May 14, 2010, Kapczynski’s medical records

____________________________________________
1 The trial court quoted the facts stated in Kapczynski’s Brief without
necessarily agreeing with or relying entirely upon all of them. See Trial Ct.
Op. at 1-3. In reciting the facts in this memorandum, we have sought to
reference only those that appear to have been accepted and relied upon by
the trial court in rendering its decision. We also rely on a “Timeline of
Events” to which the parties agreed, which is attached to the trial court’s
opinion as Exhibit A. N.T., 2/16/17, at 5-6.
2 Appellees dispute this allegation and have presented evidence that
Kapczynski’s hospitalization occurred years after the dates alleged in
Kapczynski’s complaint.

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from his primary care physician “indicate everything was normal relating to

[Kapczynski]’s mental/neurological state.     No indication of memory loss,

dementia and/or confusion.” Id.

      On June 21, 2010, at the age of 77, Kapczynski signed a deed

transferring all rights, title, and interest to his house to Appellees for

consideration of only $1.00. Appellees arranged for Kapczynski to be taken

to an attorney’s office in Ambridge, Beaver County, to execute the deed.

Kapczynski was not represented by independent legal counsel at this time.

Trial Ct. Op. at 2.     Appellees’ counsel during the real estate transaction,

Robert Taylor, states that he spoke with Kapczynski on the day of the

transaction and he “appeared to be lucid, coherent and of sound mind” and

“verbally stated and intelligibly articulated that he wanted to transfer his

residence to” Appellees. App. to Br. in Supp. of Mot. for Summ J., 12/1/16,

Ex. F, Aff., 9/27/16, at 1 ¶¶ 4-7. After signing the deed, Kapczynski

continued to live in the home, paying all costs for maintenance and property

taxes. Trial Ct. Op. at 2.

      On July 1, 2010, Kapczynski’s medical records from his primary care

physician   “indicate   everything was    normal   relating   to   [Kapczynski]’s

mental/neurological state. No indication of memory loss, dementia and/or

confusion.” Trial Ct. Op., Ex. A.

      Kapczynski was diagnosed with dementia on August 22, 2013.            Trial

Ct. Op. at 4; id., Ex. A; Dep. of Dr. James Priola (testimony by Kapczynski’s

physician that Kapczynski “started having problems with his memory . . .
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around 2013” and that the “diagnosis of dementia was made in . . . August

of 2013”).

      In the summer of 2014, Kapczynski attempted to list his house for

sale, but was told he did not in fact own the home.        The realtor advised

Kapczynski that the property had been transferred to Appellees in 2010.

Kapczynski claims that he then reviewed his accounts and discovered that

Appellees had been using a written Power of Attorney to divert funds from

his personal bank accounts to their own without his knowledge or consent.

Trial Ct. Op. at 2.

      On May 6, 2015, Kapczynski commenced this action by complaint. On

July 1, 2016, Kapczynski was deposed and was unable to testify as to any

pertinent facts.      Trial Ct. Op., Ex. A.   On October 4, 2016, Marrone was

appointed as Kapczynski’s guardian, and the caption of the complaint was

later amended to substitute her as the plaintiff.

      On October 18, 2016, Appellees moved for summary judgment.            A

response was filed on behalf of Kapczynski on November 17, 2016, and

attached to it were two affidavits that had been executed on November 15,

2016. The first affidavit, by Frank Cupelli stated:

      My name is Frank Cupelli. . . . I have known Edward
      Kapcz[y]nski for over 7 years. Via family Rich and his sister
      Margie Ann Marrone.

      I observed Edward in 2010, and know [h]is mental state was
      such that he was sometimes confused and he was unaware of
      the significance of what he was doing.

      He was not capable of making important decisions.
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The second affidavit, executed by Terry Hailstock, stated, in its entirety: “In

2010 I knew ‘Ed Kapczynski’ from doing odds job’s [sic] and cutting grass

for him. Sometimes he knew who I was and other times he did’nt. [sic] He

just look at me funny.     I just thought its [sic] was the medicine he was

taking.”

      On February 13, 2017, Appellees filed a reply contending that “the

affidavit of Mr. Cupelli is not admissible . . . and can not therefore be used to

defeat summary judgment.”        Defs.’ Reply, 2/13/17, at 7.       Additionally,

Appellees argued that the Hailstock affidavit “provides no admissible

evidence at all relating to whether [Kapczynski] knowingly and voluntarily

executed the Deed in this case.” Id.

      On February 16, 2017, the trial court held oral argument on the

summary judgment motion, during which Appellees’ counsel stated: “When

I look at the affidavit of Frank Cupelli, he says [Kapczynski] was not capable

of making important decisions. . . . He cannot produce an affidavit with an

opinion like that. That’s not admissible.” N.T., 2/16/17, at 34. At the end

of the hearing, the trial court granted summary judgment in favor of

Appellees.

      Marrone now raises the following issues on appeal:

      1.   Whether the Court of Common Pleas erred as a matter of
      law and/or abused its discretion when it granted Appellee[s’]
      motion for summary judgment having raised averments of
      material fact which remained at issue at the time of summary
      judgment?

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      2.    Whether the Court of Common Pleas[] erred as a matter of
      law and/or abused its d[i]secretion when, in granting
      Appellee[s’] motion for summary judgment, it failed to view
      and/or resolve genuine issues of material fact in a light most
      favorable to the non-moving party?

Appellant’s Brief at 4 (suggested answers omitted). As both of these issues

challenge the trial court’s decision to grant summary judgment upon

allegations that there remained genuine issues of material fact, we address

them together.

      Our standard of review with respect to a trial court’s decision to
      grant or to deny a motion for summary judgment is as follows:

         A reviewing court may disturb the order of the trial court
         only where it is established that the court committed an
         error of law or abused its discretion. As with all questions
         of law, our review is plenary.

         In evaluating the trial court’s decision to enter summary
         judgment, we focus on the legal standard articulated in the
         summary judgment rule. The rule states that where there
         is no genuine issue of material fact and the moving party
         is entitled to relief as a matter of law, summary judgment
         may be entered. Where the non-moving party bears the
         burden of proof on an issue, he may not merely rely on his
         pleadings or answers in order to survive summary
         judgment.      Failure of a non-moving party to adduce
         sufficient evidence on an issue essential to his case and on
         which it bears the burden of proof establishes the
         entitlement of the moving party to judgment as a matter
         of law. Lastly, we will view the record in the light most
         favorable to the non-moving party, and all doubts as to the
         existence of a genuine issue of material fact must be
         resolved against the moving party.

Nobles v. Staples, Inc., 150 A.3d 110, 120 (Pa. Super. 2016) (citations

omitted).   Here, the parties agree that the sole genuine issue of material

fact at issue is whether Kapczynski had the mental capacity to enter a legally

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binding transaction in June 2010.     See Appellant’s Brief at 10; Appellees’

Brief at 11.

      Marrone contends that the affidavits support her contention that

Kapczynski did not have the mental capacity to enter into any legal

agreement.     She maintains that “testimony from the affiants coupled with

expert testimony at trial presents facts that alter the outcome, thus

defeating summary judgment.”       Appellant’s Brief at 10, 15.     Presumably,

Marrone means by this that the affidavits plus testimony she will present if a

trial is held will be sufficient to enable a fact-finder to rule in her favor. On

summary judgment, however, the party bearing the burden of proof may not

rely on a pledge to present sufficient evidence if a trial occurs in the future;

the party must present sufficient evidence to forestall summary judgment in

her opposition to the motion.     See Nobles, 150 A.3d at 120; see also

Nationwide Ins. Co. v. Schneider, 906 A.2d 586, 590 (Pa. Super. 2006)

(en banc), aff’d, 960 A.2d 442 (Pa. 2008); Grandelli v. Methodist Hosp.,

777 A.2d 1138, 1144 (Pa. Super. 2001). Here, the only evidence Marrone

has presented consists of the affidavits by Cupelli and Hailstock.           The

question is whether those affidavits were sufficient to preclude entry of

summary judgment for Appellees.

      Appellees argue that the affidavits are not sufficient because they are

inadmissible due to the fact that the affiants are not qualified experts.

Appellees cite Baum v. Metropolitan Life Ins. Co., 19 A.2d 486, 487 (Pa.

Super. 1941), for the principle that a lay witness’ testimony “must be
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confined to the facts within his knowledge, and may not be extended to

matters involving the existence or non-existence of a disease, which is only

discoverable through the training and experience of a medical expert.”

Appellees’ Brief at 11.    Appellees also reference Travellers Ins. Co. v.

Heppenstall Co., 61 A.2d 809, 813 (Pa. 1948), to reiterate that “lay

witnesses are barred from testifying to the existence or nonexistence of a

disease or disorder, the discovery of which requires the training and

experience of a medical expert.” Appellees’ Brief at 11. Appellees maintain

that the affidavits of Cupelli and Hailstock are vague, “woefully insufficient,”

and “fail to . . . establish a foundation that either affiant is qualified and/or

competent to render the medical opinions set forth therein.” Id. at 7, 11;

see also id. at 12 (“[a]s [Kapczynski] has offered no information

whatsoever to suggest that Mr. Cupelli qualifies as an expert medical

witness, he is, thus, barred from testifying as to [the] assertions” in his

affidavit).   Appellees conclude that the affidavits thus cannot “establish a

genuine issue of material fact as to whether Mr. Kapczynski lacked the

mental capacity to deed his house to Appellees.” Id. at 11.

      The trial court’s explanation for its decision, in its entirety, is as

follows:

      Cupelli’s testimony that Kapczynski “was not capable of making
      important decisions” and was “unaware” of the significance of
      what he was doing” would not be admissible at trial because
      [Kapczynski] has not shown that Cupelli was qualified to render
      such opinions. That Kapczynski was “sometimes confused” in
      2010, as attested to by Cupelli or that Kapczynski sometimes did
      not recognize Hailstock is not sufficient evidence to establish
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J-A24026-17


      that Kapczynski lacked the mental capacity to deed his property
      to [Appellees]. Moreover, the affiants do not specify when in
      2010 they made their observations.

      Contrary to what is asserted in [Kapczynski’s] Brief [in
      Opposition to Appellees’ Motion for Summary Judgment], no
      evidence has been presented that Kapczynski was diagnosed
      with dementia any earlier than August 22, 2013, more than
      three years after he deeded his property to [Appellees]. Nor has
      [Kapczynski] presented any evidence that Kapczynski and
      [Appellees] agreed to any arrangement whereby “the parties
      would, in the event of the death of either party, allow one party
      to take title to the other party’s home, for the consideration of
      one dollar.” [Kapczynski’s Br. in Opp’n to Appellees’ Mot. for
      Summ. J., 12/2/16,] at 3. Likewise, [Kapczynski] has presented
      no evidence that any fraud occurred at the time Kapczynski
      deeded his property to [Appellees] on June 21, 2010.

Trial Ct. Op. at 3-4.

      The threshold question we must decide is whether the Cupelli and

Hailstock affidavits are admissible evidence that may be considered in

determining whether the record contains disputed material facts that

preclude entry of summary judgment. We stated the applicable law in In re

Mampe, 932 A.2d 954 (Pa. Super. 2007), appeal denied, 944 A.2d 758

(Pa. 2008):

      [A] lay witness may testify regarding matters of health, so long
      as his testimony is confined to facts within his knowledge, but
      the witness may not testify to matters involving the existence or
      nonexistence of a disease, which is discoverable only through
      the training and expertise of a medical expert.

Id. at 960. We held in Mampe that the trial court did not err by accepting

lay opinions and anecdotes regarding Mrs. Mampe’s weakened intellect

without any medical expert testimony concerning her mental state. The lay

opinion testimony was “limited to behaviors that [Ms. Mampe] exhibited that
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were contrary to previous behaviors she exhibited throughout her life.” Id.

Similarly, in Cominsky v. Donovan, 846 A.2d 1256, (Pa. Super. 2004), we

stated:

      A lay witness may testify as to certain matters involving health,
      the apparent physical condition of a person, and as to obvious
      symptoms, but his testimony must be confined to facts within his
      knowledge, and may not be extended to matters involving the
      existence or non-existence of a disease, which is only
      discoverable through the training and experience of a medical
      expert. Thus, a layperson may not testify to the presence of an
      underlying disease such as a heart condition or osteomyelitis.
      See [] In re Commitment of Barbour, 733 A.2d 1286 (Pa.
      Super. 1999) (a lay witness may testify about the apparent
      physical condition of a person, but may not testify regarding a
      medical diagnosis, such as the existence of bipolar disorder).
      This is because such conditions are not readily observable by the
      naked eye or even by a physical examination unless symptoms
      are ascertained and appropriate tests made.

Id. at 1259 (internal quotation marks and some citations omitted).

      Cupelli’s affidavit explains how the affiant knows Kapczynski and then

states: “I observed Edward in 2010, and know [h]is mental state was such

that he was sometimes confused and he was unaware of the significance of

what he was doing.”         These statements concern Cupelli’s personal

observations of Kapczynski; they do not opine on his medical condition in

such a way as would require medical training or expertise. The trial court

therefore erred in holding that it could not consider this portion of Cupelli’s

affidavit in resolving the summary judgment motion.

      Cupelli also states that Kapczynski “was not capable of making

important decisions.” This statement is more problematic. There is nothing

in the affidavit to support Cupelli’s opinion regarding whether Kapczynski
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“was capable of making” any decisions. Capability is a question that relates

to a person’s mental state, health, and intellect, and Cupelli’s affidavit

provides no foundation for an opinion by him regarding such matters. The

trial court therefore was correct in holding that it could not consider this

portion of Cupelli’s affidavit in resolving whether material issues of fact

prevented entry of summary judgment.

      The   Hailstock    affidavit,   after   explaining   how   Hailstock    knew

Kapczynski, stated:     “Sometimes he knew who I was and other times he

did[n’]t. He just look[ed] at me funny.” Again, these are facts observed by

the affiant that do not require prior medical training or expertise.         On the

other hand, Hailstock’s additional opinion that he thought Kapczynski’s

difficulties were caused by “the medicine he was taking” was not a personal

observation and was not within the purview of appropriate lay testimony

under Mampe and Cominsky. This portion of Hailstock’s affidavit therefore

could not be considered by the trial court in resolving whether material

issues of fact prevented entry of summary judgment.

      We therefore conclude that portions of the two affidavits were

admissible to the extent that they did not set forth a medical diagnosis

requiring the training and experience of a medical expert. See Mampe, 932

A.2d at 960; Cominsky, 846 A.2d at 1259.              The remaining question is

whether those admissible portions of the affidavits were sufficient to create a

material factual dispute relating to Kapczynski’s mental capacity that would

preclude entry of summary judgment.
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       Neither party has referred this Court to any case law holding that a

person’s mental capacity to execute a deed can be established only through

expert testimony. See Appellant’s Brief at 12-19; Appellees’ Brief at 8-16.3

In Sobel v. Sobel, 254 A.2d 649, 651 (Pa. 1969), an action for rescission of

a trust, the Supreme Court stated:

       We said [in Girsh Trust, 189 A.2d 852 (Pa. 1963),] that where
       mental competency is at issue, the real question is the condition
       of the person at the very time he executed the instrument or
       made the gift in question.       We further held that although
       competency is presumed and the burden is upon him who seeks
       to establish otherwise, the presentation of evidence tending to
       show lack of competency for a reasonable time before and after
       the critical time shifts the burden of proof to the person who
       alleges that the transaction occurred during an interval when the
       person was mentally competent. We further held that a person’s
       mental capacity is best determined by his spoken words and his
       conduct, and that the testimony of persons who observed such
       conduct on the date in question out-ranks testimony as to
       observations made prior to and subsequent to that date.

       We conclude that, under Sobel, the affidavits by Cupelli and Hailstock

are sufficient to create a material issue as to Kapczynski’s mental capacity in

2010, when he signed the deed.           Cupelli’s affidavit states that at that time,

Kapczynski     “was    sometimes      confused     and   he   was   unaware   of   the

significance of what he was doing.”                Havistock’s affidavit states that,

“Sometimes [Kapczynski] knew who I was and other times he [did not and]

just look[ed] at me funny.”            Together, the affidavits call into question

Kapczynski’s mental state.
____________________________________________
3  Consequently, the fact that “no evidence has been presented that
Kapczynski was diagnosed with dementia any earlier than August 22, 2013,”
Trial Ct. Op. at 4, is not determinative.

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      We recognize that this evidence is slim. It contrasts with significant

evidence proffered by Appellees that tends to show that Kapczynski was

competent at the time that he signed the deed, including medical records

from dates before and after the transaction and the affidavit by Robert

Taylor stating that on the date of the transaction Kapczynski “appeared to

be lucid, coherent and of sound mind” and “verbally stated and intelligibly

articulated that he wanted to transfer his residence to” Appellees. App. to

Br. in Supp. of Mot. for Summ J., 12/1/16, Ex. F, Aff., 9/27/16, at ¶¶ 4-7.

But on summary judgment, a court must “view the record in the light most

favorable to the non-moving party, and [resolve] all doubts as to the

existence of a genuine issue of material fact . . . against the moving party.”

Nobles, 150 A.3d at 120.      The court may not weigh the evidence.       We

therefore conclude that, on this record, this is not a case that should have

been decided without a trial.   Accordingly, we reverse the order granting

summary judgment to Appellees and remand for further proceedings.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017



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