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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


IN RE: ESTATE OF DOROTHY A.               :     IN THE SUPERIOR COURT OF
CARRATURA, RALPH S. CARRATURA,            :          PENNSYLVANIA
EXECUTOR                                  :
                                          :
                  V.                      :
                                          :
                                          :
MICHELE D. MYERS AND JOHN MYERS,          :
                                          :
                        Appellants        :     No. 294 WDA 2016
                                          :

                  Appeal from the Order January 28, 2016
             In the Court of Common Pleas of Allegheny County
               Orphans’ Court at No(s): OC No 02-10--02113


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

MEMORANDUM BY DUBOW, J.:                           FILED JANUARY 9, 2017

      Appellants, Michele D. Myers and John Myers, appeal from the January

28, 2016 Order entered in the Court of Common Pleas of Allegheny County

Orphans’ Court. The Order denied Appellant’s Exceptions to the trial court’s

October 19, 2015 and October 22, 2015 Orders which ordered Appellants to

return certain funds to decedent Dorothy A. Carratura’s estate, and enjoined

certain assets held by Appellants. After careful review, we vacate the trial

court’s Order on the basis that (i) the trial court erred in admitting the

testimony of the estate’s medical expert because the expert could only opine

that decedent “most probably” suffered from a weakened intellect; and (ii)

the trial court abused its discretion, in part, when it included in its unclean
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hands analysis Appellant Michele’s failure to timely notify her brothers of

their parents’ deaths. Because we vacate and remand to the trial court for

further proceedings, we decline to address Appellants’ remaining issues.

      The trial court summarized the procedural history and findings of fact

in the record below as follows:

      On June 2, 2011, Ralph S. Carratura, as the Executor of the
      Estate of Dorothy A. Carratura filed a Petition for Issuance of a
      Citation to Michele D. Myers and John Myers to Show Cause Why
      they Should Not File an Accounting of their Actions as Agent
      under the Decedent’s Power of Attorney. The Citation was
      issued and Michele D. Myers filed an Account in a timely fashion.
      On July 18, 2014, the Executor filed a Petition for Issuance of a
      Citation to Michele D. Myers. and John Myers to Show Cause
      Why they Should Not be Compelled to Repay $480,000 in
      Annuity Funds. The Citation was issued. After the parties
      conducted discovery, a hearing was held before the Court on
      June 9-11, 2015 and July 6, 2015.

                              Findings of Fact

      1. Sam and Dorothy Carratura were the parents of three
      children, Ralph and Robert (who are twins) and Michele (now,
      Michele Myers, who is married to John Myers).

      2. Sam Carratura died on August 29, 2009. Michele Myers did
      not notify her brothers when he died. An aunt called Robert a
      few days after he died and informed him of the death; he then
      called Ralph to inform him.

      3. Dorothy Carratura, the Decedent herein, died testate on
      March 5, 2010. Again, Michele Myers did not notify her brothers
      when she died. As with their father, the brothers were informed
      of the death after she was buried via a telephone call from an
      aunt.

      4. On June 17, 2007, the Decedent executed her Last Will and
      Testament, which divides her estate equally between her three
      children.




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     5. Michele and John Myers, along with their two children, resided
     in a residence bordering the residence of Michele’s parents. The
     Myers family had a very close relationship with Michele’s
     parents.

     6. Ralph and Robert had a good relationship with their parents,
     although they did not live as close to them as the Myers family.

     7. The Decedent and Sam moved into an apartment in Michele
     and John’s house in the fall of 2007 because the Decedent
     needed assistance caring for Sam, whose health was failing. The
     Decedent was not happy about moving into Michele and John’s
     house.

     8. Robert and Ralph attended a lunch at Applebee’s with the
     Decedent in March 2008. She appeared to be rather confused
     and she had difficulty selecting a menu item.

     9. Sam was moved to Sunrise Assisted Living residence in late
     July or early August 2008.

     10. In August or September of 2008, Ralph took the Decedent
     out for dinner at Eat’n Park. Again, the Decedent was confused
     and she had difficulty ordering for herself. The Decedent lost
     control of her bladder while sitting at the table.

     11. On June 25, 2007, the beneficiary on the Decedent’s Annuity
     No. [Redacted] was changed to designate Michele Myers as the
     sole beneficiary. Michele Myers received the proceeds in the
     amount of $39,394.81 after the Decedent’s death, although she
     has denied receiving the proceeds or has claimed, on some
     occasions, that she does not remember receiving the proceeds.

     12. On November 19, 2008, an annuity was purchased through
     Jackson National Life with the assistance of Christopher Marsico,
     a financial advisor, in the amount of $480,000. The annuity was
     funded with three separate checks as follows: (a) a check in the
     amount of $150,000 from a joint account in the names of the
     Decedent and her husband; (b) a check in the amount of
     $200,000 from a joint account in the names of the Decedent and
     Michele Myers; and (c) a check in the amount of $130,000 from
     a joint account in the names of John and Michele Myers.




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     13. Even though Sam Carratura was still living, the sole
     beneficiary of the annuity, per the application, was Michele
     Myers.

     14. A written Request for   Partial Withdrawal of the annuity was
     sent to Jackson National    Life on or about February 11, 2010.
     Pursuant to that request,   a check in the amount of $76,937.26
     was issued in the name of   the Decedent.

     15. The check was not cashed. Rather, on the morning of March
     5, 2010, John Myers contacted Mr. Marsico and indicated that
     the Decedent was in ailing health and no longer needed the
     money and he wanted to have the check reinvested in the
     annuity “for the estate.” Mr. Myers then inquired about “the
     beneficiary process” with regard to the annuity. Mr. Marsico
     explained that if the beneficiary was a person other than the
     estate, the funds would be distributed to the named beneficiary.
     Mr. Myers delivered the original check to Mr. Marsico’s office on
     the afternoon of March 5, 2010. [Decedent died that same day.]
     As Mr. Marsico had already left the office, he overnight mailed
     the check to Jackson National Life on the following Monday,
     March 8, 2010.

     16. Michele Myers, as the named beneficiary of the annuity, filed
     a claim and received the cash surrender value of $521,166.31.

     17. Lisa Morrow, Ph.D., an expert called by the Executor, opined
     that the Decedent "most probably" was in a state of weakened
     mental intellect in November 2008.

     18. J. Wright Leonard, who is a forensic document examiner and
     a handwriting expert, testified that of the fifteen (15) questioned
     signatures that he was asked to compare with the known
     signatures of the Decedent, samples 1 through 6 and 15 were
     the Decedent’s signatures and samples 7 through 14 were not
     the Decedent’s signatures.

     19. Virginia Balderston, M.D. was the Decedent’s treating
     physician. She testified via deposition that the Decedent was
     competent to make legal and financial decisions in 2007 and
     2008 and that she did not have a weakened intellect during that
     time period. She further stated that the Decedent had memory
     loss as of her appointment on December 17, 2007, but she was
     not exhibiting signs of dementia. By the spring and summer of
     2009, the Decedent’s health was declining, she had increased


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      memory deficits, she only knew herself, and she did not know
      the date, the day of the week, or where she was.

Trial Court Opinion, filed 10/19/15, at 2-5 (unpaginated).

      Based on those findings, the trial court entered its October 19, 2015

Order finding “that the Decedent was under the undue influence of John and

Michele Myers when she purchased the $480,000 annuity from Jackson

National Life.” Id. at 6. In its Opinion, the trial court stated that it found

“two . . . areas of testimony to be of particular importance in showing that

John and Michele Myers did not come into court ‘with clean hands.’” Id. at

7.   It then discussed their failure to notify Michele’s brothers about the

deaths of their parents, and John’s phone call to the financial advisor the day

of Decedent’s death, and how each action or omission “demonstrates bad

faith” on the part of Appellants. Id. at 7-8.

      On October 20, 2015, Appellee filed an Emergency Motion to Enjoin

[Appellants’] Disposition of Assets, which the trial court granted in part in an

Order filed October 22, 2015.

      On November 4, 2015, Appellants filed Exceptions to both Orders,

which the trial court denied in an Order filed February 1, 2016.

      Appellants timely appealed. Appellants complied with Pa.R.A.P. 1925,

however, the trial court did not prepare a Pa.R.A.P. 1925(a) Opinion




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responsive to Appellants’ Concise Statement of Errors Complained of on

Appeal.1

      On appeal, Appellants raise the following six issues:

      1. The trial court committed an error of law and abused its
         discretion when it denied [Appellants’] motion in limine to
         strike a portion of the estate’s medical expert’s testimony and
         allowed that medical expert to offer an opinion at trial that
         the Decedent was “most probably” suffering from a weakened
         intellect when she purchased the annuity in November 2008.

      2. The trial court abused its discretion by permitting the estate
         to present irrelevant and immaterial testimony at trial relating
         to events that occurred long after Decedent’s November 2008
         annuity purchase, by giving excessive and undue weight to
         that testimony and by imposing its own unclean hands
         standard on [Appellants] in evaluating whether they engaged
         in undue influence over Decedent in connection with that
         annuity purchase.

      3. The record does not contain sufficient, clear and convincing
         evidence to support the trial court’s finding that Decedent’s
         annuity purchase in November 2008 resulted from the undue
         influence of [Appellants].

      4. The trial court committed an error of law or abused its
         discretion when it denied John Myers’ Motion for Summary
         Judgment and then failed to enter judgment in his favor
         following the trial, since John Myers did not receive a
         substantial benefit from Decedent’s annuity purchase.

      5. Even assuming the court affirms the trial court’s finding that
         Decedent’s annuity purchase resulted from the undue
         influence of [Appellants], the trial court committed an error or
         law or abused its discretion when it ordered Michele Myers to
         deposit all of the annuity proceeds into the estate, including
         monies that were not or would never have become part of the
         estate and when it arbitrarily added pre-judgment interest.

1
  In lieu of a Pa.R.A.P. 1925(a) Opinion, the trial court directed this Court to
its October 19, 2015 Order. That Order only addresses one of the six issues
that Appellants raised.



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      6. The trial court committed an error of law or abused its
         discretion when it issued the order dated October 21, 2015,
         without requiring the estate to satisfy its legal burden that it
         was entitled to injunctive relief and when it improperly
         enjoined and froze the assets of [Appellants] that were
         unrelated to the annuity proceeds.

Appellants’ Brief at ii-iii (reordered for ease of disposition).

      In Pennsylvania, a presumption of undue influence arises when the

person claiming undue influence establishes, by clear and convincing

evidence, that “(1) a person or persons in a confidential relationship with a

testator or grantor has (2) received a substantial portion of the grantor’s

property, and (3) that the grantor suffers from a weakened intellect.”

Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004) (citations omitted).

      In their first issue, Appellants aver that the trial court erred in

admitting the testimony of the estate’s medical expert, Dr. Morrow, to

satisfy the weakened intellect prong of undue influence, because Dr. Morrow

could only testify that Decedent “most probably” suffered from a weakened

intellect when she purchased the annuity.

      In Pennsylvania, the law is well settled that, “[t]o be admissible, the

opinion of an expert witness must be rendered within a reasonable degree of

medical certainty.” Montgomery v. South Philadelphia Medical Group,

Inc., 656 A.2d 1385, 1390 (Pa. Super. 1995) (citation omitted). An expert’s

opinion need not be excluded simply because he used less definitive

language, so long as “at some time during his testimony he expressed his

opinion with reasonable certainty.” Id. Therefore, courts are instructed to


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consider an expert’s testimony “in its entirety” before determining whether

the requisite degree of certainty has been met. Id.

      Moreover, the expert must have a reasonable degree of certainty that

the subject of his opining is or is not true. It is not enough to say that one

is reasonably certain that something might be true. Id. (“An expert must

testify with ‘reasonable certainty’ that in his professional opinion, the result

in question did come from the cause alleged. An expert fails this standard

of certainty if he testifies that the alleged cause ‘possibly,’ or ‘could have’ led

to the result, that it ‘could very properly account’ for the result, or even that

it was ‘very highly probable’ that it caused the result.” (citations and some

quotations omitted, emphasis added)).

      As this Court has recognized:

      [t]he issue is not merely one of semantics. There is a logical
      reason for the rule. The opinion of an expert is evidence. If the
      fact finder chooses to believe it, he can find as fact what the
      expert gave as an opinion. For a fact finder to award damages
      for a particular condition to a plaintiff it must find as a fact that
      the condition was legally caused by the defendant's conduct. It
      is the intent of our law that if the plaintiff's expert cannot form
      an opinion with sufficient certainty so as to make a professional
      judgment, there is nothing on the record with which a factfinder
      can make a decision with sufficient certainty so as to make a
      legal judgment.

Cohen v. Albert Einstein Medical Center, 592 A.2d 720, 723 (Pa. Super.

1991) (citation and quotation omitted).

      In the instant case, Dr. Morrow did make passing reference to phrases

like “reasonable degree of neuropsychological certainty” and “most probable



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degree of reasonable certainty.” Report of Dr. Morrow, at 3 (unpaginated);

N.T., 6/10/15, at 335.   However, Dr. Morrow did not state, in either her

expert report or her trial testimony, that Decedent actually suffered from a

weakened intellect.   At best, Dr. Morrow testified that she was reasonably

certain that Decedent “most probably” suffered from a weakened intellect

when she purchased the annuity. Id.

      This degree of certainty is insufficient to satisfy the requirements of

Montgomery, supra, and Cohen, supra.            Appellee had the burden of

establishing, by clear and convincing evidence, that Decedent did in fact

suffer from a weakened intellect. Dr. Morrow’s opinion that she “probably”

did cannot form the basis for a finding that she did so suffer. Therefore, we

agree with Appellants that the trial court erred in admitting the testimony of

Dr. Morrow.

      Moreover, given that the Appellee’s evidence of Decedent’s weakened

intellect consisted primarily of lay testimony about two lunch dates and an

inadmissible expert opinion, we do not find that the trial court’s error was

harmless. We, therefore, vacate and remand for the trial court to reconsider

the evidence without Dr. Morrow’s testimony.

      Given that we are constrained to vacate, we need not address the

majority of Appellants’ remaining issues. However, we would be remiss in

not addressing their second allegation of error, in which they aver that the




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trial court, inter alia, abused its discretion in applying the doctrine of unclean

hands to Appellants.

      Our Supreme Court discussed the doctrine of unclean hands, and its

application to the Orphans’ Court as a court of equity, in In re Estate of

Pedrick, 482 A.2d 215, 222 (Pa. 1984). There, the Court noted that the

doctrine of unclean hands “is derived from the unwillingness of a court to

give relief to a suitor who has so conducted himself as to shock the moral

sensibilities of the judge, and it has nothing to do with the rights or liabilities

of the parties.”   Id.   The doctrine’s applicability is limited, however, and

“does not bar relief to a party merely because his conduct in general has

been shown not to be blameless; the doctrine only applies where the

wrongdoing directly affects the relationship subsisting between the parties

and is directly connected with the matter in controversy.” Id.

      A trial court has discretion to raise and apply the doctrine sua sponte,

and we review its decision to do so for an abuse of discretion. Stauffer v.

Stauffer, 351 A.2d 236, 245 (Pa. 1976).

      In the instant case, the trial court focused on two “areas of testimony”

to support its finding that Appellants “did not come into court ‘with clean

hands.’”   Trial Court Opinion at 7.       We find the trial court abused its

discretion with regard to one, and, thus, we address each “area” separately.

      The trial court first focused on Appellant Michele’s failure to notify her

brothers after the passing of their father and Decedent.          The trial court



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found it “simply unfathomable that she would not call her brothers to inform

them or, at the very least, ask her husband or one of her children to do so.

This conduct demonstrates bad faith on [Appellant] Michele’s part and leads

the [trial court] to question her motives with regard to the Decedent’s

estate.” Id.

      We disagree. While the delay was perhaps distressing to Decedent’s

sons, and arguably not blameless, Appellant Michele’s failure to notify her

brothers is not “directly connected” to the purchase of the 2008 annuity such

that it would permit Appellee to prevail regardless of the rights or liabilities

of the parties. Estate of Pedrick, supra at 222. Therefore, we conclude

that the trial court abused its discretion in applying the doctrine of unclean

hands based on these facts.

      The trial court also focused on Appellant John’s behavior of re-

depositing $76,937.26 into the annuity on the date of Decedent’s death.

There, the evidence showed that he “contacted the financial advisor on the

morning of the Decedent’s death for the purchase (sic) of re-depositing the

partial annuity withdrawal, which increased the value of the annuity and

decreased the value of the Decedent’s estate[.]” Trial Court Opinion at 8.

After reviewing the record, we conclude that the trial court did not abuse its

discretion insofar as it considered Appellants’ claim to the $76,937.26

Appellants re-deposited on the eve of Decedent’s death.




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      In light of the foregoing, we vacate the trial court’s January 28, 2016

Order denying Appellants’ Exceptions.        On remand, the trial court is

instructed to consider the merits of Appellee’s undue influence claim without

Dr. Morrow’s testimony and without a finding of unclean hands due to

Appellant Michele’s failure to contact her brothers.   If the trial court finds

undue influence on remand, the trial court should address Appellants’

remaining claims, including whether Appellant John benefitted from the

estate.   Moreover, the record is clear that Appellants provided, at a

minimum, $130,000 of the purchase cost of the annuity from their own

personal funds. If the trial court determines that Appellants must pay the

full value of the annuity to the estate, the court is instructed to provide its

reasoning for not giving credit to Appellants for the amount they

contributed.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2017




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