J-S17017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JOHN D. NEWCOMER,               IN THE SUPERIOR COURT OF
DECEASED,                                              PENNSYLVANIA

                            Appellee



APPEAL OF: CLARENCE NEWCOMER,
EXECUTOR OF THE ESTATE OF JOHN D.
NEWCOMER, DECEASED,

                            Appellant                 No. 653 WDA 2014


                 Appeal from the Order Entered March 31, 2014
                In the Court of Common Pleas of Fayette County
                      Orphans’ Court at No(s): 2613-0616


BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED APRIL 10, 2015

       Appellant, Clarence Newcomer, appeals from the order entered on

March 31, 2014, directing that the proceeds from an annuity owned by John

D. Newcomer, Sr., Appellant’s Father (“Decedent”), be paid to Theresa

Charnovich (“Ms. Charnovich”) instead of Appellant and his brother, John D.

Newcomer, Jr. We affirm.

       The record reveals that on November 21, 2013, Ms. Charnovich,

Decedent’s girlfriend of twenty-eight years, petitioned the Orphans’ Court to

issue a rule to show cause in an effort to recover approximately $40,000.00

that was deposited with American General Life Insurance in an annuity (“the
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*
    Former Justice specially assigned to the Superior Court.
J-S17017-15



annuity”), which was payable on the death of Decedent. This annuity was

purchased by Decedent on July 1, 2010, and he named Ms. Charnovich as

the sole beneficiary. On May 11, 2011, Decedent executed a Power of

Attorney (“POA”) that named his son, John D. Newcomer, Jr., his attorney in

fact. On February 20, 2013, John D. Newcomer, Jr. executed a Beneficiary

Change Request form that removed Ms. Charnovich, and named himself and

Appellant as the beneficiaries of the annuity.

       Decedent died testate on July 10, 2013, and on November 6, 2013,

Decedent’s Last Will and Testament was filed in the Orphans’ Court. 1     On

November 21, 2013, Ms. Charnovich filed the aforementioned petition, and

the Orphans’ Court issued a rule directing Appellant to show cause why the

$40,000.00 annuity should not be paid to Ms. Charnovich.            Appellant

responded, and briefs and exhibits were filed.       A hearing was held on

February 18, 2014.        Following the hearing, the Orphans’ Court concluded

that despite the authority granted to John D. Newcomer, Jr. by virtue of the

POA, he had engaged in deception and attempted to commit a fraud by

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1
    Decedent bequeathed his real property, personal property, household
furnishings, equipment, and automobiles to John D. Newcomer, Jr.
Decedent’s Last Will and Testament, 11/18/05, at 1.          Decedent also
bequeathed two Prudential annuities, two State Farm annuities, Marathon Oil
Stock, a Lincoln annuity, U.S. Steel Stock, and National City Stock to
Appellant and John D. Newcomer, Jr. to share and share alike. Id. at 2.
There were six specific bequests of $5,000.00 each to six grandchildren, and
the rest and residue of Decedent’s estate was left to Appellant and John D.
Newcomer, Jr. to share and share alike. Id.



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signing his father’s name on the Beneficiary Change Request form as

opposed to signing his own name as attorney in fact pursuant to the POA.

On March 31, 2014, the Orphans’ Court, concluding that the Beneficiary

Change Request form was a nullity due to John D. Newcomer, Jr.’s

misconduct, directed that the annuity be paid to Ms. Charnovich as Decedent

had intended. Appellant timely appealed.

     On appeal, Appellant raises the following issues for this Court’s

consideration:

     1) Whether the beneficiary change form signed by the agent of
     the deceased was valid to change the beneficiary of the annuity.

     2) Whether the Power of Attorney was disavowed as a source of
     authority.

     3) Whether the agent of the deceased could have properly
     changed the beneficiary of the annuity under the powers granted
     by the Power of Attorney.


Appellant’s Brief at 3 (unnumbered pages).        Because these issues are

inextricably related, we shall address them together.

     Our standard of review is well settled:

     The findings of a judge of the Orphans’ Court division, sitting
     without a jury, must be accorded the same weight and effect as
     the verdict of a jury, and will not be reversed by an appellate
     court in the absence of an abuse of discretion or a lack of
     evidentiary support.     This rule is particularly applicable to
     findings of fact which are predicated upon the credibility of the
     witnesses, whom the judge has had the opportunity to hear and
     observe, and upon the weight given to their testimony. In
     reviewing the Orphans’ Court’s findings, our task is to ensure
     that the record is free from legal error and to determine if the
     Orphans’ Court’s findings are supported by competent and


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       adequate evidence and are not predicated upon capricious
       disbelief of competent and credible evidence.

In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014) (citations

omitted). The fiduciary duties of an agent acting under a POA are set forth,

in part, as follows:

       (e) Fiduciary relationship.—An agent acting under a power of
       attorney has a fiduciary relationship with the principal. In the
       absence of a specific provision to the contrary in the power of
       attorney, the fiduciary relationship includes the duty to:

              (1) Exercise the powers for the benefit of the
              principal.

              (2) Keep separate the assets of the principal from
              those of an agent.

              (3) Exercise reasonable caution and prudence.

              (4) Keep a full and accurate record of all actions,
              receipts and disbursements on behalf of the
              principal.

20 Pa.C.S. § 5601(e).2

       Appellant avers that the Pennsylvania Supreme Court’s decision in In

re Estate of Slomski, 987 A.2d 141 (Pa. 2009), wherein the Court held

that a POA permitted the principal’s agent the power to change beneficiaries,

supports his position that the Orphans’ Court erred. Appellant’s Brief at 7

(unnumbered pages).         While Slomski undoubtedly permitted the agent in

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2
    While this statutory language was operative at all times relevant to this
litigation, we note that effective January 1, 2015, 20 Pa.C.S. § 5601 was
repealed and this language was integrated into the newly enacted 20 Pa.C.S.
§ 5601.3.



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that case to change the beneficiary on a retirement account,3 its holding is

inapposite here. In Slomski, the agent signed the beneficiary change form

as the attorney in fact for the principal under a POA.            Id. at 142.

Conversely, in the case at bar, the Orphans’ Court held that John D.

Newcomer, Jr., did not sign the Beneficiary Change Request form in his own

name pursuant to the POA. Rather, he engaged in misconduct and sought

to pass-off his signature as that of Decedent’s. Thus, John D. Newcomer, Jr.

was not acting under authority vested in him by the POA; he had engaged in

a subterfuge and the holding in Slomski has no bearing on our decision.

       The Orphans’ Court addressed John D. Newcomer, Jr.’s misconduct as

follows:

             In this case, it is clear that John D. Newcomer, Jr.
       attempted to pass his signature as being the signature of his
       father—at a time when his father was clearly incompetent to
       take any such action himself. There was testimony that there
       was no such intent, but this Court is persuaded otherwise. By
       signing as “John D. Newcomer” without designating himself as
       “Jr.”—as consistently set forth in the Power of Attorney that gave
       him the authority to act for his father—and by failing to refer to
       the Power of Attorney—he disavowed the Power of Attorney as a
       source of authority.

              In addition, 20 Pa.C.S.A. § 5601.2 (e) provides:
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3
    The Court in Slomski determined that the agent could change the
beneficiary on a retirement account because the “power to engage in
retirement plan transactions” was specifically included in the POA. This
power was statutorily defined to include the power to “exercise all powers
with respect to retirement plans that the principal could if present,” pursuant
to 20 Pa.C.S. § 5603(q), and this included the power to change the
beneficiary designation on the retirement plan. Slomski, at 142-143.



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              “Equity.—An agent and the donee of a gift shall be
              liable as equity and justice may require to the extent
              that, as determined by the court, a gift made by the
              agent is inconsistent with prudent estate planning or
              financial management for the principal or the known
              or probable intent of the principal with respect to
              disposition of the estate.” (emphasis supplied)[4]

             Finally, John D. Newcomer, Jr. signed an acknowledgment
       when the Power of Attorney was granted that included, inter alia,
       “I shall exercise the powers for the benefit of the principal;” and
       “I shall keep the assets of the principal separate from my
       assets;” and [“]I shall keep a full and accurate record of all
       actions....” He did not perform any of these acknowledged
       duties. Instead he tried to cheat his father’s paramour of twenty-
       eight years out of an asset specifically set aside for her, he
       attempted to convert that asset to an asset of his and his
       brother’s, and he failed to keep accurate records as to who
       actually signed the Beneficiary Change Request.

             The issue is not what John D. Newcomer, Jr. could properly
       have done, it is whether what he actually did is legally valid.
       This Court finds that his execution of the beneficiary change
       form as “John D. Newcomer” under the circumstance[s]
       presented here is a legal nullity. As a result, the proceeds of the
       annuity should have been paid out as if the Beneficiary Change
       Request form was never signed by anyone. Under the facts of
       this case, this Court finds that the proceeds of the American
       General Life Insurance annuity should have been paid to Theresa
       Charnovich, or her heirs and assigns.

Orphans’ Court Opinion and Order, 3/31/14, at 2-3 (emphases in original).

       Appellant also argues that John D. Newcomer, Jr. does not use “Jr.”

when he signs his name. Appellant’s Brief at 6 (unnumbered pages). This is
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4
   Similar to the repeal of 20 Pa.C.S.A. § 5601, which is noted above, this
statutory language from 20 Pa.C.S.A. § 5602.1 was operative at all times
relevant to this litigation, and effective January 1, 2015, 20 Pa.C.S.A.
§ 5602.1 was repealed and this language was subsumed within 20 Pa.C.S.A.
§ 5603.



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refuted by the record. The Orphans’ Court concluded and the record reflects

that Appellant’s brother routinely signed his name as “John D. Newcomer,

Jr.”   Orphans’ Court Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion,

8/29/14, at 2.      John D. Newcomer, Jr. signed his name in this fashion on

both the POA and on the line marked “signature of beneficiary” on the

benefits claim form. However, it was only on the line marked “signature of

owner” on the Beneficiary Change Request form that he signed as “John D.

Newcomer” without using “Jr.” and no mention of the POA.

       Appellant further claims that John D. Newcomer, Jr. sent a copy of the

POA to American General Life Insurance along with the Beneficiary Change

Request form. Appellants’ Brief at 6 (unnumbered pages). However, there

is no evidence that a copy of the POA was sent to American General Life

Insurance, and the Orphans’ Court found that John D. Newcomer, Jr.’s

testimony, on the whole, was not worthy of belief.                   Orphans’ Court

Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion, 8/29/14, at 2. As noted

above, credibility determinations are left to the Orphans’ Court.              In re

Estate of Bechtel, 92 A.3d at 837.

       We   agree    with   the   Orphans’    Court’s   conclusion    that   John   D.

Newcomer, Jr. engaged in deception, and we discern no abuse of discretion

in the Orphans’ Court’s conclusions.         Through his deception and effort to

obtain the proceeds of the annuity, John D. Newcomer, Jr. breached his

fiduciary duty to Decedent, and he was not exercising his powers for the

benefit of Decedent in violation of former 20 Pa.C.S. § 5601(e). Moreover,

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while John D. Newcomer, Jr. may arguably have had the authority pursuant

to the POA to change the beneficiary of the annuity, the fact that he

engaged in the deception set forth above supports the Orphans’ Court’s

conclusion that the execution of the Beneficiary Change Request form was a

nullity.   “The fact that [John D. Newcomer, Jr.] could have changed the

beneficiary under the power of attorney does not validate his fraudulent

action.    He should not be rewarded for attempting to commit a fraud.”

Orphans’ Court Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion, 8/29/14,

at 3-4 (emphasis in original). For these reasons, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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