J-S11015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM E. RALSTON, NORMA                       IN THE SUPERIOR COURT OF
MCLAUGHLIN, PATRICIA A. KOREN AND                     PENNSYLVANIA
RONALD A. RALSTON,

                         Appellants

                    v.

RANDY MOORE, EXECUTOR OF THE
ESTATE OF JANET M. MOORE; AND
ESTATE OF ARLENE L. RALSTON,
DECEASED,

                         Appellee                   No. 1284 WDA 2016


                   Appeal from the Order of August 2, 2016
              In the Court of Common Pleas of Crawford County
                      Civil Division, at No(s): 2012-1059


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                             FILED APRIL 17, 2017

      Appellants, William E. Ralston, Norma McLaughlin, Patricia A. Koren,

and Ronald A. Ralston, appeal from the order entered on August 2, 2016,

granting a motion for summary judgment filed by Randy Moore.           Upon

careful consideration, we affirm.

      The trial court summarized the facts of this case as follows:

        Clifford E. Ralston died on January 5, 2000, owning with his
        wife, Arlene L. Ralston, three parcels of land in South
        Shenango Township, as tenants by the entireties. [These
        parcels included a residence owned by the Ralstons and two
        additional plots.] Two weeks later, Mrs. Ralston granted
        power of attorney to her elder son, [] William E. Ralston,
        and youngest daughter, [] Janet Moore. She also executed
        a will that left everything to her seven children equally.


*Former Justice specially assigned to the Superior Court.
J-S11015-17


        Eight years later, aged eighty-two and nearly blind from
        macular degeneration, Mrs. Ralston went to live with [her
        daughter, Janet Moore,] and her husband, Randy Moore.
        The following year, on September 9, 2009, [Mrs. Ralston]
        signed a new will giving [28%] of her net estate to [Janet
        Moore] and [12%] to each of her other six children.

        By two deeds which are the subject of the instant [appeal],
        both dated May 20, 2010 and recorded the following day,
        Mrs. Ralston conveyed an undivided one-half interest in her
        real estate to [Janet Moore. Following this conveyance,
        Mrs. Ralston and Janet Moore] then held title to [Mrs.
        Ralston’s] former home on 31.36 acres of land as tenants in
        common, and to the other two parcels, of 127.57 acres, as
        joint tenants with rights of survivorship.

        In November of 2010, with [Janet Moore] hospitalized due
        to a stroke, Mrs. Ralston stayed for five days at the home of
        William E. Ralston, where she broke her hip. She returned
        to the Moore residence on June 1, 2011, after spending six
        months in the hospital and then a nursing home while Janet
        recuperated, and died there on February 18, 2012. Janet
        Moore, named as Executrix in the decedent’s will, was
        granted letters testamentary.

        Three years before her death, Mrs. Ralston had been
        diagnosed with impairment of memory (adequately
        compensated), visual and gait problems, and Parkinson’s
        disease (adequately compensated). Her condition further
        deteriorated after leaving the nursing home, and from at
        least October 2011, she suffered from dementia and
        hallucinations.

Trial Court Opinion, 5/11/2015, at 1-2.

     On May 30, 2013, Appellants filed a civil complaint against their

sibling, Janet Moore, individually and as executrix of Mrs. Ralston’s estate,

averring that Janet Moore used her confidential relationship to exert undue




                                    -2-
J-S11015-17



influence over Mrs. Ralston to execute the two reformed deeds.1             The

complaint sought to rescind or reform the two executed deeds, declaratory

relief as to the invalidity of deeds, and damages for lost rents and profits.

On March 16, 2015, Appellants filed a partial motion for summary judgment.

The trial court heard argument on the motion on April 27, 2015. In an

opinion and order entered on May 11, 2015, the trial court denied Appellants

relief.

          On March 16, 2016, Randy Moore filed a motion to substitute himself

as a successor for Janet Moore, his wife, who died on September 17, 2015.2

The trial court granted the successor motion by order entered on March 16,

2016.      On April 8, 2016, the trial court granted Randy Moore’s motion to

amend the caption accordingly.            On May 2, 2016, Randy Moore filed a

motion for summary judgment.              Appellants responded to the motion for

summary judgment on June 6, 2016. In an opinion and order entered on

August 1, 2016, the trial court granted Randy Moore’s motion for summary

judgment. This timely appeal resulted.3
____________________________________________


1
    There is no challenge to the will executed on September 9, 2009.
2
 Randy Moore was named executor of Janet Moore’s estate on October 6,
2015.
3
  Appellants filed a notice of appeal on August 29, 2016. On August 30,
2016, the trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).             Appellants
complied on September 19, 2016. The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on September 28, 2016, relying largely upon its earlier
(Footnote Continued Next Page)


                                           -3-
J-S11015-17



      On appeal, Appellants present the following issues for our review:

         I.      The trial court having held, in ruling on [Appellants’]
                 motion for partial summary judgment, that the record
                 contained genuine issues of fact as to the “confidential
                 relationship” and the “undue influence” issues,
                 whether the trial court erred, in ruling on [Randy
                 Moore’s] motion for summary judgment, by changing
                 its mind and ruling that there were no factual issues
                 and that [Randy Moore] was entitled to summary
                 judgment as a matter of law.

         II.     Whether the trial court failed to view the record in the
                 light most favorable to [Appellants], the non-moving
                 parties, as to the motion for summary judgment as a
                 matter of law.

         III.    Whether the record shows a sufficient confidential
                 relationship between Janet Moore and her mother,
                 Arlene Ralston, to shift the burden of proof as to
                 donative intent to Janet Moore’s estate.

Appellants’ Brief at 4-5 (complete capitalization omitted).

      Appellants’ three issues are interrelated, so we will examine them

together.      First, Appellants argue that the trial court erred by concluding

there were factual issues to resolve when it ruled on their partial motion for

summary judgment, but then “inexplicably” later granted Randy Moore’s

motion for summary judgment based upon the same facts.4                Id. at 9.
                       _______________________
(Footnote Continued)

opinions entered on May 11, 2015 (denying Appellants’ motion for partial
summary judgment) and August 1, 2016 (granting Randy Moore’s motion for
summary judgment).
4
  We outright reject Appellants’ suggestion that the trial court’s decision to
grant Randy Moore’s motion for summary judgment rested on the same
facts of record as the trial court’s ruling on Appellants’ motion for partial
(Footnote Continued Next Page)


                                            -4-
J-S11015-17



Appellants claim that the evidence presented showed a confidential

relationship between Janet Moore and Mrs. Ralston, because:            (1) Mrs.

Ralston was of weakened intellect and dependent on Janet Moore; (2) Janet

Moore received a substantial portion of Mrs. Ralston’s property; and, (3)

Janet Moore was given power of attorney and had the means to exert undue

influence on Mrs. Ralston. Id. at 12-17. Appellants also claim that because

there was sufficient evidence of a confidential relationship, the burden

shifted to Randy Moore to show Mrs. Ralston’s voluntary donative intent.

Id. at 19-21.      Appellants allege that the following facts “raise serious

questions as to Mrs. Ralston’s donative intent[:]” (1) “the scrivener of the

two deeds in question was unable to state who had called his office to

request the preparation of these joint tenancy deeds[; (2) c]onsidering Mrs.

Ralston’s advanced age, her dementia, her hallucinations, her memory loss

and her inability to read, it is highly suspicious that she would have the
                       _______________________
(Footnote Continued)

summary judgment.        In support of his motion for summary judgment,
Randy Moore submitted the depositions of Coyle Barton Jones, Esquire, Mrs.
Ralston’s attorney who prepared the deeds in question, and Attorney Jones’
secretary, Diane Mowery, as well as the deposition testimony of Charles
Ralston, Mrs. Ralston’s grandson, and William R. Ralston, an appellant
herein. See Motion for Summary Judgment, 5/2/2016, at Exhibits A-C; see
also Copy of Deposition of Diane Mowery, 5/2/2016. Appellants do not
address this additional evidence. The trial court also notes that these
depositions “augment the previously filed depositions of daughter Pearl
Reed, granddaughter Yvonne Ralston, and Janet Moore and her husband
Randy Moore on the issue of mental capacity.”             Trial Court Opinion,
8/1/2015, at 3 n.5. Hence, Appellants suggestion that the trial court did not
consider additional information following the denial of their motion for partial
summary judgment is categorically false.



                                            -5-
J-S11015-17



ability to understand a tenancy in common or a joint tenancy with right of

survivorship[;]” (3) Janet Moore was present during the execution of the

deeds; and, (4) “the record contains no evidence why Mrs. Ralston would

favor one of her children […] when she had earlier stated many times that

she wanted the farm divided equally among all seven children.”           Id.

Appellants further aver that the trial court did not employ the proper

standard of review for ruling on a motion for summary judgment when it

determined there were no issues of material fact based on “the record and

the reasonable inferences therefrom” instead of upon “clear and convincing

evidence.” Id. at 19.

     Our standard of review is clear:

        [o]ur review of the trial court's grant of summary judgment
        is plenary. Summary judgment is proper where the
        pleadings,    depositions,    answers     to  interrogatories,
        admissions and affidavits and other materials show there is
        no genuine issue of material fact and the moving party is
        entitled to judgment as a matter of law. We must view the
        record in the light most favorable to the opposing party and
        resolve all doubts as to the existence of a genuine issue of
        material fact in favor of the nonmoving party. We will
        reverse the trial court's grant of summary judgment only
        upon an abuse of discretion or error of law.

412 North Front Street Associates, LP v. Spector Gadon & Rosen,

P.C., 151 A.3d 646, 660 (Pa. Super. 2016) (citation omitted).

     We have previously determined:

        A conveyance of real property by way of deed is
        presumptively valid and will not be set aside unless it is
        shown by clear and convincing evidence that the transfer
        was improperly induced by fraud or other misconduct on the

                                    -6-
J-S11015-17


        part of the transferee. Written instruments are not to be set
        aside except upon convincing testimony that their execution
        was tainted by either actual or constructive fraud, or that
        the person executing the instrument lacked sufficient
        mental capacity. The burden of proving that the transfer
        was the product of a lack of mental capacity, undue
        influence, fraud, or a confidential relation is on the person
        seeking to set aside the deed.

Walsh v. Bucalo, 620 A.2d 21, 22–23 (Pa. Super. 1993) (internal citations,

quotations and original brackets omitted).

     As further noted in Walsh, we recognized our Supreme Court has

previously determined:

        a confidential relationship exists when the circumstances
        make it certain that the parties do not deal on equal terms;
        where, on the one side there is an overmastering influence,
        or on the other, weakness, dependence or trust, justifiably
        reposed. In both situations an unfair advantage is possible.
        Such a relation is created between two persons when it is
        established that one occupies a superior position over the
        other; intellectually, physically, governmentally, or morally,
        with the opportunity to use the superiority to the other's
        disadvantage. A confidential relationship is not limited to
        any particular association of parties, but exists wherever
        one occupies such a position of advisor or counselor as
        reasonable to inspire confidence that he will act in good
        faith for the other's interest. Where a confidential
        relationship exists, the law presumes the transaction
        voidable unless the party seeking to sustain the validity of
        the transaction affirmatively demonstrates that it was fair
        under all of the circumstances and beyond reach of
        suspicion.

        However[,] where undue influence and incompetency do not
        appear, and the relation between the parties is not one
        ordinarily known as confidential in law, the evidence to
        sustain a confidential relation must be certain; it cannot
        arise from suspicion or from infrequent or unrelated acts;
        care must be used not to confound acts springing from
        natural love and affection with confidential relations, and,


                                    -7-
J-S11015-17


         while the line of demarcation may in some cases be narrow,
         nevertheless, to sustain the integrity of gifts based on such
         affection in family relations, it is necessary the distinction
         should exist.

         [Moreover,] the fact that [a] relationship [is] one of parent
         and child [does] not, in and by itself, create a confidential
         relationship. The existence of a close family relationship per
         se does not justify recognition of a confidential relationship.
         Instead, it is necessary to show that as a result of a
         relationship between two parties, one depended upon the
         other, who was able to exercise an overmastering influence
         over the other.

Id. at 23–24 (internal citations, quotations, and original brackets omitted).

      Here, upon review of all the aforementioned depositions, the trial court

found there was no clear and convincing evidence that Mrs. Ralston and

Janet Moore were in a confidential relationship.          Trial Court Opinion,

5/11/2015, at 6. The trial court examined the familial relationship and Mrs.

Ralston’s age and infirmities, as well as Janet Moore’s role as primary

caregiver and their year-long cohabitation and determined there was no

“overpowering influence in securing the execution of the two deeds” at issue.

Id.   The trial court further recognized:

         The only evidence of undue influence [Appellants] offer[ed
         was] (1) their mother’s declaration years earlier that she
         wanted her children to share equally in her estate, (2)
         Randy and Janet Moore driving her to Attorney C. Barton
         Jones’ office, where she executed the deeds in Janet’s
         presence, and (3) Janet’s failure to inform them of the
         conveyances.     That Arlene Ralston had changed her
         testamentary intentions, however, [was] shown by her
         probated will executed eight months before the deeds, in
         which Janet was bequeathed roughly a double share of the
         residuary estate.     The execution of the deed in the
         attorney’s waiting room with Janet present [was] attributed
         to Mrs. Ralston’s physical condition; and rather than

                                      -8-
J-S11015-17


          influencing her mother’s decision, Janet replied, Mom, that’s
          totally up to you,” when asked by her mother, “is that what
          I want?” Janet made no effort to hide the deeds, as they
          were recorded in the public records at the time of execution,
          and notice of the title transfers would have been published
          in the local newspaper. Furthermore, the existence of Mrs.
          Ralston’s general power of attorney tends to show that
          Janet did not exert undue influence over her mother in
          procuring the deeds, because the transfers could have
          [been] made without Arlene’s participation by Janet as her
          agent.

                                 *         *         *

          [Randy Moore] has since taken the depositions of Attorney
          Jones and his legal secretary, Diane Mowery[.]          These
          [depositions] show clearly that Arlene Ralston acted of her
          own free will, and with the requisite knowledge and
          understanding to voluntarily execute the deeds. Thus, even
          if [the trial court found] a confidential relationship existed
          between Janet and her mother, [Randy Moore] [] met his
          burden of proving that the deeds were freely and voluntarily
          executed.

          Mrs. Ralston’s donative intent, moreover, [was] clear and
          free from all doubt.       As Ms. Mowery testified, “Arlene
          wanted to make sure that Janet was taken care of because
          of the care that she had been giving her mother.” Mowery
          Deposition at 19; see also Atty. Jones Deposition at 19-27
          (”I think it was pretty clear that she wanted to favor Janet…
          I have seen many cases where an elderly person decides to
          [carve] out [a portion their estate to] the one who has been
          giving them [] care[.]”); Deposition of Randy Moore at 24-
          25; 2015 Memorandum at 7 (discussing other evidence of
          donative intent).[5]
____________________________________________


5
    In its prior decision, the trial court stated:

          Mrs. Ralston is shown to have been a strong willed woman
          whose dictates were respected by her family. She was
          distressed by the failure of most of her children to
          participate in her care, with only daughter Pearl Reed
(Footnote Continued Next Page)


                                           -9-
J-S11015-17



Trial Court Opinion, 8/1/2016, at 2-4.

      Here, in reviewing the evidence in the light most favorable to

Appellants as our standard requires, we discern no abuse of discretion or

error of law in granting Randy Moore’s motion for summary judgment. The

evidence shows that Janet Moore did not take a superior or overmastering

position over Mrs. Ralston to Mrs. Ralston’s disadvantage.           While Mrs.

Ralston, at one time, may have intended for all of her children to share

equally in her estate, her intentions changed over time. When Janet Moore

became Mrs. Ralston’s primary caregiver, Mrs. Ralston changed her will to

give Janet Moore a larger portion of her estate than she did her other six

children.   No one contested that decision.         Nine months thereafter, Mrs.

Ralston executed the deeds at issue. The evidence presented showed that

Mrs. Ralston was able to understand the nature of the disposition of her real

property and freely and voluntarily chose to favor Janet Moore for providing


                       _______________________
(Footnote Continued)

         providing meaningful assistance to [Janet Moore], and only
         subsequent to their mother’s return from the nursing home
         in 2011. As shown by her 2009 will, Mrs. Ralston had
         abandoned her initial intention to divide her property
         equally among her children. Apart from the deeds, [Janet
         and Randy Moore were] never compensated for providing
         [Mrs. Ralston] with room and board or health care
         services[.] Randy Moore believed that the deeds were in
         gratitude for his wife’s services.

Trial Court Opinion, 5/11/2015, at 7 (footnotes omitted).



                                           - 10 -
J-S11015-17


her care.6 There was simply no evidence presented of undue influence and

mere conjuncture will not suffice. Accordingly, we agree with the trial court

that there was no confidential relationship between Janet Moore and Mrs.

Ralston.    Thus, Appellants failed to meet their burden of proving that the

transfer was the product of a lack of mental capacity, undue influence,

fraud, or a confidential relationship. As such, it was unnecessary to examine

Mrs. Ralston’s donative intent. Based upon all of the foregoing, we conclude

that there were no genuine issues of fact and that the grant of summary

judgment was proper.

       Order affirmed.




Judgment Entered.




____________________________________________


6
    Prior to executing the deeds, Attorney Jones read them to Mrs. Ralston
and testified that Mrs. Ralston “understood what she was doing and she
wanted to do it.” Randy Moore’s Motion for Summary Judgment, Exhibit A,
at 10. There was “no trepidation on her part or even urgency” and she was
not bewildered, passive or inattentive. Id. at 10, 22. “[S]he showed a
present understanding of her assets and she understood that these deeds
were going to accomplish the transfer.” Id. at 11. Mrs. Ralston “was
adamant, insistent that this is what she wanted to do.” Id. at 20. “Janet
was saying nothing and Arlene was not asking Janet for any support.” Id.
Attorney Jones “did not see challenged mental faculties on that day.” Id. at
23. He testified that, in conjunction with the will change in 2009, he saw
Mrs. Ralston’s deliberate progression of giving more assets to Janet. Id. at
23.



                                          - 11 -
J-S11015-17


Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




                          - 12 -
