J-A31018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERICA FLEAGLE LEACH                                IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

PEGGY A. DAVIS

                            Appellee                   No. 760 MDA 2014


                       Appeal from the Order April 8, 2014
                In the Court of Common Pleas of Franklin County
                        Civil Division at No(s): 2011-437


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED FEBRUARY 05, 2015

        Erica Fleagle Leach appeals from the order entered April 8, 2014, in

the Franklin County Court of Common Pleas, granting summary judgment in

favor of defendant, Peggy A. Davis.            In this action, Leach sought to

invalidate an inter vivos transfer of a deed to a 110-acre farm1 from her

grandfather,2 Ira M. Fleagle (herein “the decedent”) to Davis, who is Leach’s

aunt and the decedent’s daughter. On appeal, Leach argues the trial court

abused its discretion in granting summary judgment to Davis because the
____________________________________________


1
  Throughout the proceedings, the acreage of the farm was referred to as
110, 125 or 137 acres. For purposes of this appeal, we will refer to the total
acreage as 110 acres, as that is the amount that appears in Leach’s
amended complaint, and Davis’s answer.           See Plaintiff’s Amended
Complaint, 3/22/2013, at ¶ 4; Answer to Amended Complaint, 4/17/2013, at
¶ 4.
2
    Leach’s father, who was the decedent’s son, died in 1978.
J-A31018-14



deed transfer (1) constituted an invalid inter vivos gift; (2) was the result of

undue influence; (3) created a constructive trust; or (4) created a resulting

trust.     For the reasons set forth below, we reverse, in part, the order

granting summary judgment, and remand for further proceedings.

         The facts underlying this appeal are as follows. Davis and Leach are

the decedent’s sole legal heirs.3 The decedent owned a 110-acre farm about

a mile from his house.        Shortly after his wife’s death, the decedent began a

relationship with Mary Hoover. The decedent routinely stayed at his home

during the week, and spent the weekends with Hoover. In 2004, he moved

into Hoover’s home full-time. He lived with her until his final hospitalization

in October of 2010.

         During all but 11 years of her life, Davis lived at the decedent’s home. 4

Sometime in the mid-1980’s, the decedent set up a joint bank account with

Davis and relied on her to write checks and pay his bills. 5 Davis stated the

decedent told her how much money he wanted each month and she

____________________________________________


3
  See 20 Pa.C.S. §§ 2103, 2104. Davis is the decedent’s only surviving child
and Leach is the only daughter of the decedent’s son. The decedent’s wife
died in 1968.
4
  Davis did not live at the home while she was married. In 1978, after she
divorced, she and her sons moved into the decedent’s home and lived there
rent-free until his death.
5
 Hoover testified the decedent was semi-literate. See Deposition of Mary
Hoover, 2/17/2012 (“M. Hoover Deposition”), at 11.




                                           -2-
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withdrew the cash for him. Deposition of Peggy Davis, 1/20/2012 (“Davis

Deposition”), at 20.   When the decedent lived at the home, Davis cooked

meals for him, did his laundry and drove him to appointments, as needed.

Id. at 43.

      Leach described her relationship with the decedent as “somewhat

distant due to our circumstances.”         Deposition of Erica Fleagle Leach,

1/20/2012 (“Leach Deposition”), at 8.       She lived about an hour from the

decedent’s home, and saw him approximately four to five times a year. She

stated that she sent him cards for special occasions, and called him “once

every couple of months” when he lived with Hoover.       Id. Leach admitted

that “toward the end” she spoke more with Hoover because her grandfather

had difficulty hearing. Id.

      In October of 2010, the decedent suffered a heart attack and was

hospitalized. Davis was initially informed by hospital staff that the decedent

would be sent to a nursing home for rehabilitation.       Concerned that the

decedent could lose the family farm in order to pay for his stay in a nursing

home, Davis asked him if he would sign the property over to her.          She

described their conversation as follows:

      [B]asically I told him that they were going to be sending him to
      a nursing home and I said about sometimes, you know, the
      property is attached if you run out of insurance money and
      would he be willing to sign the property over to me but it would
      still be his and he said, yes.




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Davis Deposition at 36. Davis stated that the decedent wanted her to have

the farm because he did not “want his land split up” and he knew she would

“not do anything with it.” Id. at 29.

        On October 27, 2010, while still hospitalized, the decedent executed a

deed conveying the 110-acre farm to Davis for $1.00 consideration.        The

transaction was completed and notarized at the decedent’s hospital bedside

by Heather Miller, a settlement agent for a title company. Thereafter, the

hospital staff informed Davis the decedent would not be sent to a nursing

home, but rather, would be sent home with hospice care. Two months later,

on December 20, 2010, the decedent died, intestate, at the age of 86.6

        On May 19, 2011, Leach filed a complaint for deed avoidance, seeking

to invalidate the October 27, 2010, deed transfer of the decedent’s farm.

After deposing the relevant parties and all relevant witnesses, Leach filed an

amended complaint on March 22, 2013. Thereafter, on June 12, 2013, she

filed a motion for summary judgment, and followed by an amended motion

on July 10, 2013.        Davis subsequently filed a cross-motion for summary

judgment on August 7, 2013. By order entered April 8, 2014, the trial court

denied Leach’s motion for summary judgment and granted Davis’s motion




____________________________________________


6
    Letters of administration were issued to Davis on March 23, 2011.




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for summary judgment.          Further, the court dismissed Leach’s action with

prejudice. See Order, 4/8/2014. This timely appeal followed.7

       Although Leach lists 16 issues in the Statement of Questions Involved

section of her brief, she raises only four claims in the Argument section. All

of her contentions originate from the underlying claim that the trial court

erred in granting Davis’s motion for summary judgment.

       When reviewing a motion for summary judgment, we “may disturb the

order of the trial court only where it is established that the court committed

an error of law or abused its discretion.” Murphy v. Duquesne U. Of The

Holy Ghost, 777 A.2d 418, 429 (Pa. 2001), citing Capek v. Devito, 767

A.2d 1047, 1048, n.1 (Pa. 2001).

       As with all questions of law, our review is plenary. In evaluating
       the trial court’s decision to enter summary judgment, we focus
       on the legal standard articulated in Pa.R.C.P. 1035.2. The rule
       states that where there is no genuine issue of material fact and
       the moving party is entitled to relief as a matter of law,
       summary judgment may be entered. Where the nonmoving
       party bears the burden of proof on an issue, he may not merely
       rely on his pleadings or answers in order to survive summary
       judgment.

Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. 2011)

(internal citations omitted). See also Pa.R.C.P. 1035.2.

____________________________________________


7
 On May 5, 2014, the trial court ordered Leach to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P 1925(b).             Leach
complied with the trial court’s directive and filed a concise statement on May
20, 2014.




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        Thus, our responsibility as an appellate court is to determine
        whether the record either establishes that the material facts are
        undisputed or contains insufficient evidence of facts to make out
        a prima facie cause of action, such that there is no issue to be
        decided by the fact-finder. If there is evidence that would
        allow a fact-finder to render a verdict in favor of the non-
        moving party, then summary judgment should be denied.

Jones v. Levin, 940 A.2d 451, 453-454 (Pa. Super. 2007) (internal

citations and footnote omitted) (emphasis supplied).            In making this

determination, we will “view the record in the light most favorable to the

non-moving party, and all doubts as to the existence of a genuine issue of

material fact must be resolved against the moving party.”             Keystone

Freight Corp., supra, 31 A.3d at 971.

        In her first issue on appeal, Leach argues the trial court erred in

rejecting her claim that the deed transfer constituted an invalid inter vivos

gift.   The two elements necessary to prove a valid inter vivos gift are (1)

donative intent and (2) delivery.      Hera v. v. McCormick, 625 A.2d 682,

686 (Pa. Super. 1993).        “Donative intent is the ‘intention to make an

immediate gift.’”     Wagner v. Wagner, 353 A.2d 819, 822 (Pa. 1976)

(quotation omitted). To prove adequate delivery of a gift, the conveyance

“must not only divest donor of all dominion and control over the property,

but also must invest donee with complete control over the subject matter of

the gift.” Hera, supra, 625 A.2d at 686 (citation omitted).

        Initially, the burden is on the alleged donee to prove a gift inter
        vivos by clear, precise and convincing evidence. Once prima
        facie evidence of a gift is established, a presumption of validity
        arises and the burden shifts to the contestant to rebut this
        presumption by clear, precise and convincing evidence.


                                       -6-
J-A31018-14



Id. (citations omitted).

      Relevant to the facts of this case, we note that

      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 part of the transferee or that
      the deed was ineffective to pass title, as, for example, where the
      deed was not delivered.

Wagner, supra, 353 A.2d at 823-824 (Pa. 1976) (emphasis supplied). “[I]t

is well-settled that by showing a confidential relationship between the donor

and donee existed at the time of the gift, the burden then shifts to the

donee to show that the gift was free of any taint of undue influence or

deception.” In re Clark's Estate, 359 A.2d 777, 781 (Pa. 1976).

      Here, Leach argues the transfer of the deed lacked both donative

intent and delivery.       She contends that because Davis admitted the

decedent’s motive for transferring the deed was not to gift the farm to her,

but rather to avoid a future attachment on the property by a nursing home,

the transfer lacked the requisite intent to make an immediate gift.

Moreover, Leach also claims that because Davis told the decedent the

property would still be his, the transfer did not constitute a valid delivery.

Indeed, Leach states, “[a]t most [the decedent] viewed [Davis] as a trustee

or conservator.” Leach’s Brief at 33.

      The trial court rejected Leach’s argument, finding that the requisite

elements of donative intent and delivery were both satisfied upon transfer of

the deed. The court explained:


                                     -7-
J-A31018-14


     Upon execution of the deed, the Decedent was divested of all
     dominion and control giving such control to [Davis]. Further,
     donative intent was present upon signing on the deed, as such
     action evinces a manifestation of intent to convey the farm at
     the time of execution on October 27, 2010. [Leach] has not
     rebutted the presumption that the deed was a valid transfer of
     the farm. Therefore, the deed is prima facie evidence of a valid
     inter vivos transfer of property from the Decedent to [Davis].

Trial Court Opinion, 4/9/2014, at 24.

     We agree with the trial court’s determination that the execution of the

deed constituted prima facie evidence of a presumptively valid gift from the

decedent to Davis.    Wagner, supra.        The terms of the deed are clear:

“Grantor [decedent] … does grant, bargain and sell, release and confirm

unto said Grantee [Davis], as sole owner[,]” the farm property, described

therein. Deed, 10/27/2010, at 1 (emphasis supplied). Moreover, the deed

also provided that the land was “granted … unto the said Grantee, her heirs

and assigns, forever.”   Id. at 3.      Accordingly, under the deed’s explicit

terms, the decedent granted all his interest in the land to Davis, which

became enforceable upon execution of the deed.       Nevertheless, our inquiry

does not end here, since, as noted above, a presumptively valid gift may be

set aside upon clear and convincing evidence of undue influence.      Clark’s

Estate, supra.

     If a party contesting an inter vivos gift can demonstrate a confidential

relationship existed between the grantor and grantee, “the burden shifts to

the donee to show that the alleged gift was free of any taint of undue

influence or deception.” Hera, supra, 625 A.2d at 690.         Although, here,



                                     -8-
J-A31018-14



the trial court found Leach failed to produce sufficient evidence to

demonstrate either that a confidential relationship existed between the

decedent and Davis or that Davis asserted undue influence over the

decedent,8 Leach challenges those determinations in her second issue on

appeal.

        A presumption of undue influence arises when evidence of three

elements is present: “(1) … a person … 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).

“Once the presumption has attached, the burden of proof shifts to the

defendant to disprove undue influence by clear and convincing evidence that

one of the foregoing criteria is not established.” Id.

        This Court has explained that “[a] confidential relationship exists

where the circumstances ‘make it certain that the parties did 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.’”   Hera,

supra, 625 A.2d at 690 (citation omitted and emphasis supplied). Both an

“overmastering influence” and “weakness, dependence or trust” need not be

present. Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa. Super. 2001).


____________________________________________


8
    See Trial Court Opinion, 4/9/2014, at 16-21.



                                           -9-
J-A31018-14



“Th[is] Court has recognized … that ‘[t]he essence of [a confidential]

relationship is trust and reliance on one side, and a corresponding

opportunity to abuse that trust for personal gain on the other.’”             Id.

(emphasis supplied).

        In the present case, Leach contends a “confidential relationship”

existed between Davis and the decedent.               She emphasizes that Davis

controlled “the bulk” of the decedent’s finances, providing him with an

allowance and, in certain circumstances, withholding that allowance. Leach

Brief at 37.     Moreover, Leach argues Davis “spawned and designed the

deeding” of the farm, “retained, directed and paid the scrivener, and was

present when the deed was executed” while the decedent was “bedfast with

dementia and other serious afflictions in the Intensive Care Unit of a

hospital.” Id. at 38.

        The trial court found, however, “there [was] simply not enough

evidence to evince a confidential relationship between the [d]ecedent” and

Davis.      Trial Court Opinion, 4/9/2014, at 18.             Although the court

acknowledged the decedent “trusted and relied on [Davis] to handle his

money,” it noted that “such a relationship is not out of the ordinary in a

father-daughter relationship.”         Id.     Moreover, the court discounted two

disagreements about money the decedent had with Davis,9 finding that


____________________________________________


9
    These two disagreements are discussed in more detail infra.



                                          - 10 -
J-A31018-14



those two instances did “not amount to [Davis] having an overmastering

influence on the [d]ecedent.” Id. Furthermore, the court concluded:

        The modicum of evidence favorable to [Leach] regarding a
        confidential relationship does not “make it certain that the
        parties did not deal on equal terms” when the [d]ecedent
        executed a deed in [Davis’s] favor. Therefore, [Leach] cannot
        establish the existence of a confidential relationship between
        [Davis] and the [d]ecedent.

Id. at 19-20.

        Viewing the evidence, as we must, in the light most favorable to the

nonmoving party,10 we are constrained to disagree with the trial court’s

conclusion.      Rather, we find Leach produced sufficient evidence of a

confidential relationship between Davis and the decedent to survive

summary judgment, and establish a genuine issue of material fact.

        The evidence demonstrated that Davis lived in the decedent’s home

since 1978, and had a joint bank account with the decedent since the mid-

1980’s.    Davis Deposition at 12, 14.             Davis testified she “wrote all the

checks” on the account to pay his bills, and that the decedent permitted her

to use the account to pay her own grocery bill as well. Id. at 15, 19. She

also provided him with spending money from that account. Id. at 20-21.

        Hoover, the     decedent’s longtime          girlfriend,   testified   that   Davis

controlled the decedent’s finances, and provided him with a monthly

____________________________________________



10
     Keystone Freight Corp., supra, 31 A.3d at 971.




                                          - 11 -
J-A31018-14



allowance until June of 2010. M. Hoover Deposition at 8-9. She described

two instances in which the decedent and Davis disagreed about money. The

first occurred in June 2010, when Hoover took the decedent to get money

from Davis. Hoover explained that Davis asked to see the decedent’s wallet

and, upon finding a significant amount of cash, took $1300 from him, and

returned the wallet stating he “[didn]’t need it.”           Id. at 14.       The second

incident occurred sometime during the summer of 2010, when the decedent

asked Davis for money to buy new clothes for Leach’s September, 2010

wedding. Id. at 13. Davis gave him only $200 and told him “he didn’t need

a suit.” Id. at 14.11

       Furthermore,      Davis    admitted     that   she   initiated   the    discussion

regarding the deed transfer at a time when the decedent was hospitalized, in

ill health, and believed he would be discharged to a nursing home.                   She

asked him if he would deed the farm to her, purportedly to prevent its

attachment by a nursing home, and told him that the farm would, in any

event, still be his. Id. at 36. While Davis acknowledged the transaction was

rushed, she testified she “just wanted the property, you know, taken care of

before he went to a nursing home.” Id. at 39.



____________________________________________


11
   However, Hoover also acknowledged she and the decedent had another
banking account, in their joint names, from which he wrote a $2,000 check
as a gift to Leach for her September 2010 wedding. M. Hoover Deposition at
28.



                                          - 12 -
J-A31018-14



     While the evidence may not, ultimately, be of sufficient quality and

quantity to support a verdict for Leach, that determination is a question for

the fact finder.   Here, the trial court prematurely weighed the evidence

presented by Davis and Leach, and made credibility determinations

regarding Davis’s intentions.   Rather, the court was required to view the

evidence in the light most favorable to the non-moving party, here Leach, in

an effort to determine whether Leach presented sufficient evidence for a jury

to find that Davis and the decedent had a “confidential relationship,” and

whether there existed a genuine issue of material fact.      See Keystone

Freight Corp., supra, 31 A.3d at 967; Jones, supra, 940 A.2d at 453-454.

Based on our review of the record, there is a genuine issue of material fact

as to whether Davis had an overmastering influence over the decedent, or

whether the decedent trusted and depended on Davis.

     The same is true of Leach’s evidence concerning the decedent’s

“weakened intellect.”    When considering whether a decedent had a

“weakened intellect,”

     [o]ur Supreme Court has cautioned that “weakened mentality as
     relevant to undue influence need not amount to testamentary
     incapacity.” Consequently, the grantor’s mental condition at the
     moment he authorized the transfer of his property is “not as
     significant when reflecting upon undue influence as it is when
     reflecting upon testamentary capacity. [When the challenge is
     based on undue influence,] more credence and weight may be
     given to the contestant’s remote medical testimony.” Although
     our cases have not established a bright-line test by which
     weakened intellect can be identified to a legal certainty, they
     have recognized that it is typically accompanied by persistent
     confusion, forgetfulness and disorientation.


                                   - 13 -
J-A31018-14



Owens v. Mazzei, 847 A.2d 700, 707 (Pa. Super. 2004) (internal citations

omitted). However, it is axiomatic that “[e]vidence of physical infirmities …

is not enough, alone, to establish weakened intellect.”      In re Estate of

Glover, 669 A.2d 1011, 1015 (Pa. Super. 1996) (finding will contestants

failed to produce any evidence that decedent “suffered from spells of

confusion, forgetfulness or disorientation” and, in fact, court found “[a]lmost

every witness testified that [decedent] was extremely strong-willed, lucid

and sharp”).

      Leach contends the evidence demonstrated the decedent had a

weakened intellect.   Specifically, she emphasizes that the decedent was

semi-literate, and in a “dire mental and physical condition on the days

surrounding the deeding.” Leach’s Brief at 38.

      Conversely, the trial court found that the evidence presented by Leach

may have “touch[ed] upon confusion, forgetfulness, or disorientation, but

[did] not establish that the [d]ecedent was of less than sound mind[.]” Trial

Court Opinion, 4/19/2014, at 20. Moreover, the court emphasized Leach’s

lack of medical testimony supporting the decedent’s purported weakened

mental state. Id. In fact, the only medical document of record appears to

contradict Leach’s claim.   That document, a report of a doctor’s interview

with the decedent two days before the decedent executed the deed transfer,

indicates the decedent was “alert and oriented to person, time and place.




                                    - 14 -
J-A31018-14



He [was] able to answer our questions.” See Leach Deposition, Exhibit D-1,

Initial Hospital/Consult RPT, 10/27/10, at 2.12

       Again, viewing the record in the light most favorable to the nonmoving

party, we conclude the trial court did not acknowledge evidence presented

by Leach, which was sufficient to demonstrate, for purposes of summary

judgment, that the decedent suffered from a weakened intellect.          For

example, Leach testified that when she visited the decedent in the hospital

on October 19, 2010, a week before he signed the deed transfer, he was “a

very sick man.” Leach Deposition at 11. She explained their conversation

was “[v]ery minimal” and the decedent “kind of just laid there and just

looked at us.”     Id.   More importantly, even Davis admitted that while the

decedent was in the hospital, he would sometimes hallucinate, and see

things on the wall, due to the medication he was given. Davis Deposition at

37.   Both Hoover and her son, Roger, testified that during the last six

months of his life, the decedent’s physical and mental health were declining.

M. Hoover Deposition at 15; Deposition of Roger Hoover, 2/17/2012 (“R.

Hoover Deposition”), at 9. Roger explained that “sometimes [the decedent

would] be lucid, then the next minute he wouldn’t be[.]”          R. Hoover

Deposition at 12.


____________________________________________


12
   That same report, however, also indicates that “[a]ccording to [the
decedent’s] family physician, …[the decedent] is also progressively more
disoriented and demented.” Id. at 1.



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J-A31018-14



       Although the trial court emphasized the lack of medical evidence, none

is required.     See In re Estate of Angle, 777 A.2d 114, 123 (Pa. Super.

2001) (noting that “[a] doctor's opinion on medical incompetence is not

given particular weight especially when other disinterested witnesses

establish that a person with Alzheimer’s disease was competent and not

suffering from a weakened intellect at the relevant time.”) (emphasis

supplied). Indeed, Leach presented evidence, via two witnesses who had no

interest in the farm, Hoover and her son, that the decedent’s mental health

was progressively declining in the months prior to his hospitalization.

Moreover, Davis herself admitted that the medications the decedent received

while he was hospitalized were causing him to hallucinate. The fact that the

settlement agent, who had not met the decedent prior to the deed transfer,

testified that she thought he “knew what was going on around him” is not

dispositive.13    Deposition of Heather Miller, 1/20/2012 (“Miller Deposition”)

at 16. Rather, when a challenge is based upon “weakened intellect” rather

than “testamentary capacity,” “more credence and weight may be given to

the contestant’s remote medical testimony.”        Owens, supra, 847 A.2d at

707 (citation omitted).


____________________________________________


13
   Specifically, when asked if the decedent was alert at the time of the deed
transfer, Miller testified: “I think he knew what was going on around him,
yes. I wouldn’t say he was … bright-eyed and bushy tailed.” Miller
Deposition at 16.




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J-A31018-14



     Accordingly, we conclude the trial court abused its discretion, and

improperly weighed the evidence, when it concluded Leach failed to establish

a prima facie case of undue influence. See Estate of Keiper, 454 A.2d 31,

34 (Pa. Super. 1982) (“Transactions by which a decedent shortly before his

death practically strips himself of all his available property are naturally

regarded with suspicion, and are to be scrutinized with a keen and

somewhat incredulous eye.”) (citation omitted).           Therefore, we     are

constrained to reverse the order granting summary judgment on this claim.

     In her next issue, Leach argues the trial court erred in concluding she

failed to present sufficient evidence that the deed transfer created a

constructive trust. She contends that, by Davis’s own words, the admitted

motivation for the deed transfer was to prevent attachment of the property

by a nursing home, which at best, constituted a unilateral mistake. Leach

further asserts the decedent never intended to gift the farm to Davis.

     When considering whether a property transfer creates a constructive

trust, we must bear in mind the following:

     The imposition of a constructive trust is an equitable remedy
     designed to prevent unjust enrichment. A constructive trust
     arises ‘(w)here a person holding title to property is subject to an
     equitable duty to convey it to another on the ground that he
     would be unjustly enriched if he were permitted to retain it. . . .’
     A transferee is under such an equitable duty to reconvey
     property to the transferor if the transfer was induced by
     fraud, duress, undue influence, or mistake, or if the
     transfer was the result of an abuse of a confidential
     relationship.




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Yohe v. Yohe, 353 A.2d 417, 421 (Pa. 1976) (internal citations omitted and

emphasis supplied).

      As we noted supra, we find Leach presented sufficient evidence of

Davis’s “undue influence” over the decedent to survive summary judgment.

Accordingly, that same evidence, if credited by the fact finder, is sufficient to

demonstrate that the deed transfer established a constructive trust. Indeed,

by her own words, Davis assured the decedent that after the transfer, the

property “would still be his.” Davis Deposition at 36. Accordingly, this claim

also survives summary judgment.

      Lastly, Leach argues the deed transfer established a resulting trust.

She contends that by Davis’s own words, “any reasonable person would

have to conclude that this was a trust type arrangement.” Leach’s Brief at

45.    Leach argues the circumstances surrounding the deed transfer

demonstrate that the decedent did not intend Davis to have a beneficial

interest in the farm. Id. at 44.

      A party must demonstrate the establishment of a resulting trust with

clear and convincing evidence. Chambersburg Trust Co. v. Eichelberger,

588 A.2d 549, 551 (Pa. Super. 1991).          “A resulting trust arises when a

person makes a disposition of property under circumstances which raise an

inference that he does not intend that the person taking or holding the

property should have a beneficial interest in the property.” Fenderson v.

Fenderson, 685 A.2d 600, 604 (Pa. Super. 1996) (citations omitted). “A

resulting trust must arise at the time title is transferred.” Id. at 605.

                                     - 18 -
J-A31018-14



       Here, the trial court found that the circumstances on the date of the

deed transfer did not raise an inference that “the [d]ecedent did not intend

for [Davis] to have a beneficial interest in the farm at the time when he

conveyed it to her.”        Trial Court Opinion, 4/9/2014, at 21.        Indeed, he

signed over the deed to her, exclusively.            See Deed, 10/27/2010, at 1

(stating “Grantor … does grant, bargain and sell, release and conform unto

said Grantee, as sole owner” the farm property) (emphasis supplied). We

find no reason to disagree. Although there was some evidence that, at one

time, the decedent intended to sell the property to his nephew,14 there was

no indication on the day of the title transfer, that the decedent intended to

transfer less than a full beneficial interest in the property to Davis.

Accordingly, the trial court properly granted summary judgment in favor of

Davis on this claim.

       Because we conclude the trial court abused its discretion in granting

summary      judgment      on   Leach’s    claims   of   undue   influence   and   the

establishment of a constructive trust, we reverse, in part, the order granting

summary judgment, reinstate counts II and III of Leach’s amended




____________________________________________


14
   See R. Hoover Deposition at 6-9; Deposition of Arthur Beidel, 2/17/2012,
at 8; Deposition of Joseph Umbrell, 2/17/2012, at 5-6.




                                          - 19 -
J-A31018-14



complaint, and remand for further proceedings.     In all other respects, we

affirm the order of the trial court.15

       Order affirmed in part and reversed in part.     Case remanded for

proceedings consistent with this Memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




____________________________________________


15
   Leach presented the following eight counts in her amended complaint: (I)
Lack of Testamentary Capacity and Incompetence; (II) Undue Influence;
(III) Constructive Trust as to Real Estate; (IV) Resulting Trust as to Real
Estate; (V) Bank Account Constructive Trusts; (VI) Bank Accounts Resulting
Trusts; (VII) Accounting to Franklin County; and (VIII) Application of the
Clean Hands Doctrine. See Plaintiff’s Amended Complaint, 3/22/2013. In
its April 9, 2014, order and opinion, the trial court disposed of all eight
counts and dismissed Leach’s complaint with prejudice. Therefore, with the
exception of counts II and III, we affirm the court’s order.



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