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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF: GLADYS M. REED, :           IN THE SUPERIOR COURT OF
DECEASED                          :                 PENNSYLVANIA
                                  :
APPEAL OF: JANET REED             :                 No. 2054 MDA 2016


                Appeal from the Order Entered November 22, 2016,
             in the Court of Common Pleas of Northumberland County
                   Orphans’ Court Division at No. OC-2012-0064


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 21, 2017

      Janet Reed appeals the order of the Court of Common Pleas of

Northumberland County Orphan’s Court Division that denied appellant’s

petition to show cause why her appeal from the decree of the Register of

Wills admitting will to probate should not be sustained to permit the Register

of Wills to receive and act upon an earlier will.    After careful review, we

affirm.

      Appellant alleged in her petition that decedent executed a last will and

testament on November 28, 2007, which left the majority of her estate to

her four children, Donald R. Reed (“D. Reed”), Barbara A. Treibley

(“Treibley”), Richard R. Reed (“R. Reed”) (collectively, “appellees”), and

appellant.     On April 17, 2012, decedent executed a new will only hours

before her death in which she left the majority of her estate to appellees.
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Those three were named executors when the will was admitted to probate

on April 25, 2012.

      On May 11, 2012, appellant appealed from the Register of Wills’

decree admitting the April 17, 2012 decree to probate.            Appellant alleged

that at the time of the execution of the will, decedent’s physical and mental

condition was greatly impaired by sickness and infirmity such that she was

not a person of sound mind capable of disposing of her estate by will.

Appellant also alleged that the writing was procured by fraud in the

inducement,    undue    influence,   duress,   and   constraint    practiced   upon

decedent by her siblings, D. Reed, Treibley, and R. Reed.

      On May 17, 2012, the trial court issued a citation to show cause why

the appeal should not be sustained. On December 6, 2012, the trial court

sustained in part preliminary objections filed by appellees and dismissed

appellant’s petition without prejudice.

      On December 26, 2012, appellant filed a first amended petition.

Essentially, appellant contested the will of her mother, Gladys M. Reed

(“decedent”), submitted to the Register of Wills of Northumberland County

and asked that it be set aside based upon lack of mental capacity, undue

influence, and fraud.   This time the petition was divided into four counts. In

Count 1, appellant alleged that decedent lacked testamentary capacity to

execute a new will, the new will should be set aside, and that the will dated

November 28, 2007, should be used as the will of the decedent. In Count 2,



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appellant alleged that the undue influence of D. Reed and R. Reed led

decedent to execute the April 17, 2012 will. In Count 3, appellant alleged

that the undue influence of Treibley led decedent to execute the April 17,

2012 will. In Count 4, appellant alleged that her three siblings committed

fraud by making statements to decedent that appellant allegedly stole

everything that decedent owned and/or stole certain property from

decedent.

     Appellees answered and denied the material allegations of the petition.

As new matter, appellees alleged that appellant had unclean hands because

appellant used her power of attorney to effectuate a transfer and taking of a

deed, transferring the sum of $19,360.72 from decedent’s checking account

into a Medical Escrow Account, transferring the sum of $140,161.74 from

Certificates of Deposit owned by decedent into the Janet E. Reed Medical

Escrow account, and transferring the sum of $4,360.72 from decedent’s

checking account to the Janet E Reed Medical Escrow Account. Additionally,

appellees alleged that appellant entered decedent’s safe deposit box on

March 13, 2012, and removed all of decedent’s certificates of deposit,

annuity contracts, deeds, and other items showing indicia of ownership of

decedent’s assets.   According to appellees, appellant made these transfers

after decedent informed her that decedent wanted to terminate the power of

attorney.




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      Appellant replied and asserted that appellant made the transfers under

the mistaken belief that she was preserving decedent’s assets by protecting

them from the nursing home and that she returned them to decedent prior

to decedent’s death.

      On June 18, 2015, appellees moved for summary judgment and

alleged that deposition testimony of decedent’s doctor and the appellees as

well as witnesses to the April 17, 2012 will that decedent was of sound mind

and capacity when she executed the 2012 will. Appellees also asserted that

appellant failed to establish any undue influence. On September 24, 2015,

the trial court denied the motion for summary judgment.

      On November 22, 2016, after conducting a hearing and accepting

proposed findings of facts from both parties, the trial court issued the

following relevant findings of fact and conclusions of law:

            Findings of Fact:

            ....

            3.     In August of 2005, [appellant], the youngest
                   child of the [d]ecedent, was appointed as the
                   Power of Attorney for the [d]ecedent.

            4.     The [d]ecedent, while living, executed a Last
                   Will and Testament on November 28th 2007.

            5.     On February 22nd 2012, the [d]ecedent broke
                   her leg and was admitted to the hospital.

            6.     Prior to this date, the [d]ecedent had handled
                   her own financial affairs with competency.




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          7.    Decedent was discharged from the hospital on
                or about March 5th 2012 and was admitted to a
                nursing home in Watsontown.

          8.    Following admission of the [d]ecedent to the
                hospital, [appellant] began to utilize the Power
                of Attorney to take over management of her
                mother’s financial affairs.

          9.    On or about March 11th 2012, [d]ecedent
                executed a handwritten Revocation of Power of
                Attorney prepared by [R.] Reed.

          10.   On or about March 13th 2012, [appellant]
                began transferring assets of the [d]ecedent
                into her own name, including the [d]ecedent’s
                house, car, and assorted financial properties
                (i.e. bank accounts, annuity contracts, and
                certificates of deposit)[.]

          11.   [Appellant] testified that she did these things
                under the mistaken belief that she was
                protecting her Mother’s assets from the
                nursing home.

          12.   [R.] Reed testified that [appellant] phoned him
                the day following the Revocation of the Power
                of Attorney execution and sarcastically
                congratulated him on becoming the Power of
                Attorney.

          13.   [Appellant] testified she never saw the
                Revocation and was not advised of the same
                by the [d]ecedent.

          14.   [Appellant] did not consult with an attorney
                prior to transferring the [d]ecedent’s assets.

          15.   Several items of personal property of the
                [d]ecedent went missing following inspection
                of the residence by [R. Reed] and [D. Reed],
                [appellant] testified that these were gifts to
                her from her mother.



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          16.    The [d]ecedent was admitted to the hospital
                 from April 4th to April 7th of 2012.

          17.    She was sent back to the nursing home on
                 April 7th and then re-admitted to the hospital
                 on April 9th 2012.

          18.    During her time at the hospital, the [d]ecedent
                 suffered from shortness of breath, congestive
                 heart     failure, and    severe      pulmonary
                 hypertension (April 4 to April 7 2012) and
                                      th            th

                 pneumonia requiring mechanical ventilation
                 and endotracheal intubation and hypercapnia
                 which is increased levels of carbon dioxide in
                 the blood and can cause confusion (April 9th to
                 April 16th 2012).

          19.    [Appellant] was able to see her mother on
                 April 4th and April 8th of 2012. On April 8th, she
                 was escorted out of the hospital by a social
                 worker because of her mother’s desire not to
                 see her.

          20.    [Appellant] was prevented from seeing her
                 mother by the hospital on April 12th, April 13th,
                 and April 16th 2012.

          21.    The hospital was acting on direction           of
                 [R.] Reed the newly appointed Power            of
                 Attorney of the [d]ecedent.

          22.    [Appellant] testified that her mother never told
                 her she didn’t want to see her.

          23.    [Appellees] testified that they believed their
                 mother did not want to see [appellant].

          ....

          25.    Decedent, having been advised of the
                 continued transferring of assets from her name
                 by [appellees], was prompted to take action to
                 change her Will.



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           26.    [R. Reed and D. Reed] contacted the estate
                  attorney, presumably at the behest of the
                  [d]ecedent, and directed that a new Power of
                  Attorney and a codicil to the [d]ecedent’s will
                  be drafted.

           27.    Nursing notes from April 17th 2012 indicated
                  that [d]ecedent was not sure where she was
                  and had difficulty with orientation questions.

           28.    The estate attorney met with the [d]ecedent
                  on the evening of April 17th 2012 to review the
                  new Power of Attorney and the codicil.

           29.    The estate attorney indicated that [d]ecedent
                  appeared lucid and well-reasoned during the
                  execution of the documents.

           30.    Said documents were executed by [d]ecedent
                  on that date at 5:00 p.m.

           31.    Decedent passed away at           approximately
                  8:00 a.m. on April 18th 2012.

           32.    The Last Will and Testament of [d]ecedent was
                  admitted to probate on April 25th 2012.

           ....

           34.    A compulsory nonsuit was granted as to the
                  claims of lack of testamentary capacity and
                  fraud.

           35.    A prima facie case of the elements of undue
                  influence was established at trial, sufficient to
                  rebut the previously arisen presumption of
                  proper execution of the will dated April 17th
                  2012.

           36.    [Appellees] then present[ed] clear and
                  convincing evidence of the absence of undue
                  influence.

Order, 11/22/16 at 1-4, Findings of Fact Nos. 3-23, 25-32, and 34-36.


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      On November 22, 2016, the trial court denied the petition contesting

the will on the basis that appellees proved by clear and convincing evidence

that undue influence did not exist at the time of execution of the will on

April 17, 2012.    The trial court granted a compulsory non-suit on the

allegations of lack of testamentary capacity and fraud.

      Appellant filed a notice of appeal on December 13, 2016.         The trial

court ordered appellant to prepare a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).          On December 29, 2016,

appellant complied with the order and filed a statement of errors complained

of on appeal. On April 21, 2017, the trial court issued an order in lieu of

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for this court’s review:

            1.    Whether the trial court abused its discretion
                  and/or committed an error of law in failing to
                  set aside the Will executed by [d]ecedent, [],
                  on the grounds of undue influence?

            2.    Whether the trial court abused its discretion
                  and/or committed an error of law in finding
                  that [appellees] presented clear and convincing
                  evidence of the absence of undue influence?

            3.    Did the trial court abuse its discretion and/or
                  commit an error of law in granting a
                  compulsory non-suit in favor of [a]ppellees on
                  [a]ppellant’s claim of lack of testamentary
                  capacity?

            4.    Did the trial court abuse its discretion and/or
                  commit an error of law in granting a
                  compulsory non-suit in favor of [a]ppellees on
                  [a]ppellant’s claim of fraud?


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Appellant’s brief at 4-5.

                   On appeal from the Register of Wills’ decree
            admitting a will to probate, the Orphans’ court must
            consider the facts presented and “either dismiss the
            petition, grant an issue in case of a substantial
            dispute, or set aside the probate.”         Wagner’s
            Estate, 289 Pa. 361, 367, 137 A. 616, 618 (1927).
            With respect to this Court’s standard and scope of
            appellate review in will contests, the Orphans’ court
            decision will not be reversed unless there has been
            an abuse of discretion or a fundamental error in
            applying the correct principles of law. In re Elias’
            Estate, 429 Pa. 314, 239 A.2d 393 (1968). See
            also In re Estate of Presutti, 783 A.2d 803
            (Pa.Super. 2001). If the record supports the court’s
            factual findings, we will defer to these findings and
            will not reverse absent an abuse of discretion. In re
            Estate of Blumenthal, 812 A.2d 1279, 1286
            (Pa.Super. 2002). We are not constrained, however,
            to give the same deference to the court’s legal
            conclusions. Id.

In re Estate of Luongo, 823 A.2d 942, 951 (Pa.Super. 2003) (footnote

omitted).

      Initially, appellant argues that the trial court abused its discretion

and/or committed an error of law when it failed to set aside the April 17,

2012 will of decedent on grounds of undue influence.

                 A presumption of validity arises once a will is
            probated, and the burden shifts to the contestant to
            prove undue influence. In re Clark’s Estate, [334
            A.2d 628 (Pa. 1975)]; Estate of Angle, 777 A.2d
            114 (Pa.Super.2001); Burns [v. Kabboul, 595 A.2d
            1153 (Pa.Super. 1991)]; In re Estate of Jakiella,
            353 Pa.Super. 581, 510 A.2d 815 (1986).

                  To meet this burden, the contestant
                  must establish by clear and convincing


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               evidence that: (1) the testator was of
               weakened intellect at the time the will
               was executed; (2) the proponent of the
               will stood in a confidential relationship
               with the testator; and (3) the proponent
               received substantial benefit under the
               will.

                                  ***

               The “weakened intellect” which must be
               shown      in   order    to    establish   a
               prima facie case of undue influence
               upon the testator need not amount to
               testamentary incapacity.            Although
               testamentary      capacity     is    to   be
               determined by the condition of the
               testator at the very time he executes a
               will, evidence of incapacity for a
               reasonable time before or after the
               making of a will is admissible as an
               indication of lack of capacity on the day
               the will is executed. While a testator
               may dispose of his property as he sees
               fit, the law is rigid in its insistence that
               one of weak mind, whether from
               inherent cause or by reason of illness,
               shall not be imposed upon by the art and
               craft of designing persons.

                                  ***

               For purposes of voiding a will on the
               ground of undue influence, a confidential
               relationship      exists       whenever
               circumstances make it certain that the
               parties did not deal on equal terms but
               that on the one side there was an
               overmastering influence, and on the
               other, dependence or trust, justifiably
               reposed.

          Burns, supra at 1162-63 (internal citations
          omitted). Additionally, this Court has explained:


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               The term “influence” does not encompass
               every line of conduct capable of
               convincing a self-directing person to
               dispose of property in one’s favor. The
               law requires that the influence be control
               “acquired over another that virtually
               destroys [that person’s] free agency.”
               Conduct constituting influence must
               consist of “imprisonment of the body or
               mind,    or    fraud,   or   threats,   or
               misrepresentations, or circumvention, or
               inordinate flattery, or physical or moral
               coercion, to such a degree as to
               prejudice the mind of the testator, to
               destroy his free agency and to operate
               as a present restraint upon him in the
               making of a will.”         A parent-child
               relationship does not establish the
               existence of a confidential relationship
               nor does the fact that the proponent has
               a power of attorney where the decedent
               wanted the proponent to act as
               attorney-in-fact.

          In re Estate of Angle, supra at 123 (internal
          citations omitted) (emphasis added). An allegation of
          alcohol or drug use does not raise a presumption of
          weakened intellect. In re Kerr’s Estate, 255 Pa.
          399, 100 A. 127 (1917); In re Masseth’s Estate,
          213 Pa. 136, 62 A. 640 (1905).

                Because undue influence has been described
          as subtle, intangible, yet recognizable by human
          experience, it may be shown by circumstantial
          evidence. In re Ziel’s Estate, 467 Pa. 531, 359
          A.2d 728 (1976). Nevertheless, opportunity,
          suspicion and conjecture do not create or amount to
          proof of either a confidential relationship or undue
          influence and cannot carry the cause.          In re
          Thompson’s Estate, 387 Pa. 82, 126 A.2d 740
          (1956); In re Quein’s Estate, 361 Pa. 133, 62 A.2d
          909 (1949).



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In re Estate of Luongo, 823 A.2d at 963-964 (Pa.Super. 2003).

        Appellant asserts that the trial court’s decision is conflicting as to

whether appellant made out a prima facie case for undue influence.             As

appellant states, the trial court found that appellant laid out a prima facie

case for undue influence.        In a will contest, the opposing party has an

opportunity to rebut the prima facie case. Although the trial court found

that appellant established a prima facie case, conclusions of law that do not

support a finding of undue influence can be based on the evidence presented

by appellees. Although the trial court determined that appellant established

a prima facie case of undue influence, once it heard appellees’ testimony, it

did not conclude that there was undue influence.

        Appellant next contends that she established that decedent suffered

from a weakened intellect. While there is no bright line rule that defines the

term “weakened intellect,” courts have recognized that a “weakened

intellect”     is   often   accompanied   by   disorientation,   confusion,   and

forgetfulness.      In re Estate of Smaling, 80 A.3d 485, 498 (Pa.Super.

2016).

        Appellant recounts the worsening of decedent’s health on April 8-9,

2012.        According to the medical reports from Evangelical Community

Hospital, decedent, a patient at the hospital, was calling out for the lights to

go on and later was calling out “I love you” to anyone.              (Evangelical

Community Hospital, ICU/Stepdown Shift Assessment, 4/17/12 00:04 at 1.)



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A note from a nurse later on April 17, 2012 indicated that decedent did not

know where she was and did not answer orientation questions posed to her.

(Evangelical Community Hospital, ICU/Stepdown Shift Assessment, 4/17/12

00:12 at 1.)     At approximately 11:30 a.m. on April 17, 2012, decedent

stated that she wanted to be allowed to die. (Id. at 6.) Decedent executed

the will that appellant contested at approximately 5:00 p.m. on April 17,

2012.     Appellant argues that this evidence of decedent’s behavior was

sufficient to establish that decedent possessed weakened intellect.

        However, appellant does not take into account the evidence presented

regarding    decedent’s   intellect   that   appellees’   presented.     Appellees

presented     the   deposition   testimony       of   Doyle    D.   Ashburn,   D.O.

(“Dr. Ashburn”), decedent’s treating physician at Evangelical Community

Hospital and board-certified in critical care medicine.1 Dr. Ashburn described

decedent as presenting in the emergency room with respiratory distress on

April 9, 2012. Decedent had pneumonia and had to have an endotracheal

tube inserted. (Deposition of Doyle D. Ashburn, D.O., 12/12/13 at 10.) In

addition to the pneumonia, Dr. Ashburn explained that decedent also had

hypercapnia, a high carbon dioxide level and that people with that condition

are “oftentimes confused, disoriented.”         (Id. at 15.)   Dr. Ashburn further

testified that decedent’s mental state improved as her carbon dioxide levels




1 The parties stipulated that Dr. Ashburn’s discovery deposition would be
used as a trial deposition.


                                       - 13 -
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returned to the normal range and her infection was getting under control.

(Id. at 16.)     Dr. Ashburn reported that by the morning of April 16, 2012

decedent’s condition again declined as she was “less interactive, less

responsive again.” (Id. at 34.) On April 17, 2012, decedent was “very clear

in what she wanted at that time” when she discussed end of life medical

issues. (Id. at 40-41.) Dr. Ashburn described decedent as “very lucid, very

clear. She knew she was in the hospital. She knew what was going on, why

she was there.”      (Id. at 42.)     Dr. Ashburn believed that decedent was

competent to make decisions regarding her resuscitative wishes.            (Id. at

50.)

       Additionally, Melissa Lobos, Esq.          (“Attorney Lobos”), an estate

attorney and scrivener of the April 17, 2012 will, was called by appellant as

a witness.     Attorney Lobos testified that at the time decedent signed the

April 17, 2012 will, it was quite clear that decedent “understood what was

going on.”     (Notes of testimony, 6/20/16 at 133.)         Attorney Lobos was

shocked   that    decedent   died    the   next    day.    (Id.   at   134.)     On

cross-examination, Attorney Lobos testified that when she met with

decedent on March 19, 2012, decedent’s mental capacity was fine. She was

in a nursing home after suffering a broken leg.            (Id. at 137.)       When

Attorney Lobos again met with decedent on March 23, 2012, she found

decedent “very competent.”          (Id. at 139.)     When Attorney Lobos saw

decedent in the hospital on April 17, 2012, Attorney Lobos ran through a list



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of questions to ascertain whether decedent had sufficient capacity to execute

a new will and was satisfied that decedent answered satisfactorily. (Id. at

145-146.) On redirect, Attorney Lobos responded to a question concerning

whether she believed decedent was competent enough to sign the will:

              I am going to answer that this way. At that point I
              had been doing this for 25 years.        I had done
              hundreds of wills. I have been in nursing homes. I
              have been in peoples’ end of life situations. I know
              the questions to ask. I would not in any way put my
              professional license or reputation on the line if I did
              not believe that she knew what she was doing, or
              that she was being influenced by somebody else. I
              would have absolutely walked out of there with the
              Will, and my secretary, and she would not have
              signed it.

Id. at 165.

      The trial court found credible the testimony of both Dr. Ashburn and

Attorney Lobos that decedent was in control of her faculties and not

weakened mentally during the execution of the April 17, 2012 will.         In

Orphans’ Court proceedings, the trial court serves as the fact-finder. This

court will not disturb the trial court’s credibility determinations absent an

abuse of discretion.      In re Estate of Presutti, 783 A.2d 803, 805

(Pa.Super. 2001). Here, there is no allegation that the trial court abused its

discretion.    The testimony, accepted as credible by the trial court, was

sufficient to establish that decedent did not possess a weakened intellect at

the time she executed the will on April 17, 2012, which is the first prong of

undue influence.



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      Appellant next contends that there was a confidential relationship

between R. Reed and decedent.        However, as the trial court stated, the

failure to establish one element of undue influence results in the failure of

the cause of action so that it is unnecessary to review the other elements of

the action. Similarly, this court need not address appellant’s contention that

appellees received a substantial benefit, the third element of undue

influence, from the April 17, 2012 will.

      Appellant next contends that the trial court abused its discretion

and/or committed an error of law when it found that appellees presented

clear and convincing evidence of the absence of undue influence. Appellant

asserts that the trial court never set forth any legally competent evidence

that showed that appellees established the absence of undue influence.

Appellant ignores the credible evidence that decedent did not suffer from a

weakened intellect at the time she executed her last will and testament.

      Appellant next contends that the trial court abused its discretion

and/or committed an error of law when it granted a compulsory non-suit in

favor of the appellees on appellant’s claim of lack of testamentary capacity.

      At the conclusion of appellant’s case-in-chief, appellees moved for a

non-suit on the issues of lack of testamentary capacity, undue influence, and

fraud on the basis that appellant had failed to present clear and convincing

evidence as to the allegations.      With respect to testamentary capacity,




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appellees argued that the testimony of Attorney Lobos, who was called as a

witness for appellant, refuted the allegation of lack of testamentary capacity.

        The trial court granted the motion for non-suit with respect to lack of

testamentary capacity, undue influence with respect to all counts except the

undue influence of R. Reed and D. Reed. (Notes of testimony, 6/21/16 at

256.)

        In its order in lieu of opinion, the trial court stated that no appeal

could be taken from the grant of the compulsory non-suit because appellant

failed to file for a removal of the non-suit, pursuant to Pa.R.C.P. No. 230.1.

        Appellant argues that the Pennsylvania Supreme Court recently

adopted amendments to Orphans’ Court Rule 8.1, effective September 1,

2016, where “no exceptions or post-trial motions may be filed to any order

or decree of the court.” Appellant concedes that under the prior Orphans’

Court rules, it was necessary to file a motion for post-trial relief to remove a

compulsory non-suit pursuant to Rule 227.1(a)(3) of the Pennsylvania Rules

of Civil Procedure, but that is no longer the case under the new rule.

        Before addressing the merits of appellant’s appeal, this court must

determine whether this court can hear the appeal.

        “A nonsuit may be entered against a contestant in a will contest

whenever the contestant has the burden of overcoming the presumption of

validity arising from due proof of execution as required by law and the

contestant has failed to satisfy that burden.” 20 Pa.C.S.A. § 779(b).



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             A motion for compulsory non-suit allows a defendant
             to test the sufficiency of a plaintiff’s evidence and
             may be entered only in cases where it is clear that
             the plaintiff has not established a cause of action; in
             making this determination, the plaintiff must be
             given the benefit of all reasonable inferences arising
             from the evidence. When so viewed, a non-suit is
             properly entered if the plaintiff has not introduced
             sufficient evidence to establish the necessary
             elements to maintain a cause of action; it is the duty
             of the trial court to make this determination prior to
             the submission of the case to the jury. When this
             Court reviews the grant of a non-suit, we must
             resolve all conflicts in the evidence in favor of the
             party against whom the non-suit was entered.

Taliferro v. Johns-Manville Corp., 617 A.2d 796, 799 (Pa.Super. 1992),

citing Hatbob v. Brown, 575 A.2d 607 (Pa.Super. 1990), and Eisenhauer

v. Clock Towers Assoc., 582 A.2d 33 (Pa.Super. 1990).

      Rule 230.1 of the Pennsylvania Rules of Civil Procedure provides that if

a motion for compulsory non-suit is granted, then the plaintiff may file a

written motion to remove the non-suit pursuant to Rule 227.1 of the

Pennsylvania Rules of Civil Procedure.

      Rule 227.1(a)(3) of the Pennsylvania Rules of Civil Procedure provides

that a trial court may remove a non-suit following a written motion for

post-trial relief.

      Historically, it has been the law in Pennsylvania that the entry of a

compulsory non-suit is not immediately appealable. Rather, it is the denial

of a motion to remove a compulsory non-suit that is appealable. Murphy v.

International Druidic Society, 152 A.3d 286, 289-290 (Pa.Super. 2016).



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In Murphy, this court quashed an appeal where the appellant failed to file a

post-trial motion after the entry of a compulsory non-suit and, instead, just

filed an appeal.

      The Pennsylvania Orphans’ Court Rule 8.1 provides that no post-trial

motions may be filed to any order or decree of the court. The explanatory

comment states that post-trial motion practice applicable to civil cases does

not apply to practice in Orphans’ Court. The effective date of this rule was

September 1, 2016.

      Here, the motion for non-suit was granted on June 21, 2016. Under

Rule 227.1(c)(2) of the Pennsylvania Rules of Civil Procedure, post-trial

motions are to be filed within ten days of the notice of non-suit or the filing

of the decision in the case of a non-jury trial. In Papalia v. Montour Auto

Service Co., 682 A.2d 343, 345 (Pa.Super. 1996), this court held that the

time for filing a post-trial motion after a compulsory non-suit commences

when the order of court is entered on the docket. Here, no order was issued

until November 22, 2016. Therefore, appellant did not have the opportunity

to file post-trial motions until this time. However, the date of the order was

after the effective date of Pennsylvania Orphans’ Court Rule 8.1 which

provided that post-trial motions were unnecessary in Orphans’ Court. As a

result, this court agrees with appellant that she was not required to file any

post-trial motions.   Consequently, this court will address the merits of

appellant’s arguments on this issue.



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      Appellant argues that the trial court abused its discretion and/or

committed an error of law when it granted the compulsory non-suit in favor

of appellees on appellant’s claim of lack of testamentary capacity.

      “A testator possesses testamentary capacity if he knows those who are

the natural objects of his bounty, of what his estate consists, and what he

desires to be done with it, even though his memory may have been impaired

by age or disease.” Kuzma Estate, 408 A.2d 1369, 1371 (Pa. 1979). The

condition of the testator at the time of the execution of the will is the critical

factor, although evidence of capacity or incapacity for a reasonable time

before the execution of the will is admissible as evidence of capacity. Id.

      Appellant argues that decedent did not understand or appreciate her

close relations at the time of the execution of the will because the scrivener

of the will, Attorney Lobos, failed to review the impact that the execution of

the will would have on appellant’s daughter, Jennifer Colleluori (“Colleluori”),

who had a close relationship with decedent. The alleged failure to discuss

the effect of the new will on Colleluori does not appear to establish a lack of

testamentary capacity.     Attorney Lobos testified that decedent possessed

sufficient capacity to execute the will. This court concludes that the failure

to discuss Colleluori does not provide evidence of a lack of testamentary

capacity.

      Appellant further argues that the medical evidence of Dr. Ashburn

shows that decedent lacked testamentary capacity.             However, though



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decedent experienced some confusion earlier in the day, Dr. Ashburn

pronounced decedent to be very lucid, aware of her surroundings, and

competent to make end of life decisions. Once again, this court agrees with

the trial court that appellant failed to prove a lack of testamentary capacity.

      Finally, appellant contends that the trial court abused its discretion or

committed an error of law when it granted a compulsory non-suit on the

claim of fraud. Appellant asserts that R. Reed and D. Reed barred appellant

from seeing decedent from April 8, 2012, until decedent’s death. Appellant

wanted to make amends with decedent and explain her actions.            Further,

appellant asserts that no one asked decedent if she wanted to see or hear

from appellant before the signing of the will.

      “The essence of fraud is deceit intentionally and successfully practiced

to induce another to part with property or with some legal right. Fraud is

practiced when deception of another to his damage is brought about by a

misrepresentation of fact or by silence when good faith required expression.”

Thorne’s Estate, 25 A.2d 811, 816 (Pa. 1942).

      Appellant ignores the fact that she transferred assets from decedent to

herself and that decedent was aware that she had done so. Appellant had

the opportunity to convince decedent that she made a mistake before

decedent’s final hospitalization but failed to do so. The trial court found that

these actions apparently led decedent to change the will. While it is clear

that relations were and are strained between appellant and appellees, this



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court determines that the trial court did not abuse its discretion when it

granted the motion for non-suit as appellees successfully established that

appellant failed to establish a cause of action for fraud.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017




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