J-A32011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF SHEILA CURRY SAYER                      IN THE SUPERIOR COURT OF
A/K/A SHEILA C. SAYER, AND                              PENNSYLVANIA
SHEILA SAYER, DECEASED

                            Appellee

                       v.

APPEAL OF MICHAEL CURRY BLOOM, IN
HIS OWN RIGHT, AND HANNAH CURRY
WITTMAN AND MALLORY CLAY
WITTMAN, BY THEIR NATURAL PARENT
AND GUARDIAN, SUZANNE BLOOM
WITTMAN AND SUZANNE BLOOM
WITTMAN, IN HER OWN RIGHT

                            Appellants                No. 3160 EDA 2013


                  Appeal from the Decree November 12, 2013
               In the Court of Common Pleas of Delaware County
                       Orphans' Court at No(s): 89-2012


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                              FILED APRIL 13, 2015

        The children and grandchildren of Decedent Sheila Sayer (Testator)

appeal the decree entered by the Delaware County Court of Common Pleas,

Orphan’s Court division, granting summary judgment to Elizabeth Hazel

Murphy Campbell, the sole beneficiary under Testator’s will, and Joseph

Siedlarz, Esq., the scrivener and executor of the will (collectively Appellees).


____________________________________________



    Former Justice specially assigned to the Superior Court.
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       The relevant facts and procedural history are as follows. Mr. Siedlarz,

as Testator’s estate attorney, prepared several wills over the years for

Testator, including the will executed on August 18, 2011, which is at issue

here. The August 18, 2011 will contains the following sentence: “I make no

provisions in this will for my children and grandchildren, not because of any

lack of affection for them, but because they are already well provided for.”

Last Will and Testament of Sheila C. Sayer, dated August 18, 2011, at 2,

Reproduced Record (“R.R.”) at 705a. In addition, the August 18, 2011 will

appointed Mr. Siedlarz as the sole executor, as opposed to his prior

designation as co-executor, of the estate.       Ms. Campbell, Testator’s close

friend for over 20 years, is the sole beneficiary. The execution of the August

18, 2011 will was witnessed by Mr. Siedlarz and Kathyrn Razzi.1

       Testator died on September 28, 2011.        On November 9, 2011, the

August 18, 2011 will was admitted to probate as the last will and testament

of Testator. On December 5, 2011, Testator’s children, Appellants Michael C.

Bloom and Suzanne Wittman, filed a formal caveat and request for

certification objecting to the admission of the August 18, 2011 will and

requesting that no letters testamentary or letters of administration be

issued.   The Register of Wills held a hearing on November 9, 2011, after
____________________________________________


1
  The August 18, 2011 will has the same distribution scheme as Testator’s
prior will, which was executed on November 13, 2010. Under both wills, Ms.
Campbell is named as the sole beneficiary of the estate. The estate at issue
is worth approximately $700,000.



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which it dismissed the caveat, admitted the August 18, 2011 will to probate,

and granted Letters Testamentary to Mr. Seidlarz.

     On July 2, 2012, Appellants filed a petition for citation sur appeal,

which was later amended, alleging that Testator lacked testamentary

capacity when she executed the August 18, 2011 will and, alternatively, that

the will was the product of fraud, forgery, and undue influence.                 Ms.

Campbell filed preliminary objections, which were overruled on November

20, 2012.    Appellants then filed a motion for judgment on the pleadings

seeking to vacate the probate of the will, again alleging fraud, forgery, and

undue influence. In May 2013, the court denied the motion; set a discovery

schedule, which was amended on June 27, 2013, ordering that discovery be

completed by July 31, 2013; and scheduled trial for October 2013.

     On August 19, 2013, Appellants filed a “Petition for Sanctions Under

Pa.R.C.P. 4019(c)(1); to Complete Answers to Interrogatories and Document

Request;    to   Compel   Respondent    Joseph   Siedlarz,   III   to   Submit    to

Deposition; and for Amendment of the Scheduling Order.” On September 4,

2013, Ms. Campbell filed a motion for summary judgment joined by Mr.

Siedlarz. On September 16, 2013, after a hearing on the motion for

sanctions and to compel discovery, the trial court entered a decree ordering

Mr. Siedlarz to present himself for deposition on Monday, October 7, 2013.

On October 3, 2013, Appellants filed an answer to the motion for summary

judgment. Oral arguments were held on October 16, 2013, and the trial


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court granted the summary judgment motion by order entered November

12, 2013. Appellants filed a timely appeal to this Court.2

       Our review of a grant of a motion for summary judgment is well-

settled. An appellate court 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. 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 the
       summary judgment rule. 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 non-moving 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. Failure of a
       non-moving party to adduce sufficient evidence on an issue
       essential to his case and on which it bears the burden of proof ...
       establishes the entitlement of the moving party to judgment as a
       matter of law. Lastly, 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.

Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429

(Pa. 2001) (citations and quotation marks omitted).

       The proponent of the will has the burden to present evidence of the

formalities of probate. See In Re Clark’s Estate, 334 A.2d 628, 631 (Pa.

1975).    Once those formalities have been proven and the will has been

admitted to probate, its validity is presumed and the contestant bears the
____________________________________________


2
  Appellants have withdrawn Issue “D” as a basis for their appeal.           See
Appellants’ Brief at 33.



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burden of proving that “the testator lacked mental capacity, or [that] the will

was obtained by forgery, fraud, or undue influence, or was the product of an

insane delusion.” In Re Estate of Nalaschi, 90 A.3d 8, 11-12 (Pa. Super.

2014) (citation omitted).

       Appellants first argue that the Register of Wills violated 20 Pa.C.S.A. §

3132 by admitting the August 18, 2011 will to probate because, allegedly,

only one of the two subscribing witnesses appeared before the Register of

Wills at the probate hearing.3 This issue is waived. Appellants did not raise

this issue before the Register of Wills or before the trial court in their petition

for citation sur appeal. Moreover, Appellants did not raise this issue in any

of the over four hearings on various issues that were held prior to the entry

of the trial court’s order granting summary judgment.            Contrary to the

statement in their docketing statement filed with this Court, that their issues

were preserved by “pre-trial motion,” there is no pre-trial motion in the

certified record raising an issue regarding the Register of Wills’ compliance

with § 3132.       In fact, this is the first time they have raised this issue.

Because it was not raised below, the issue is waived. See Pa.R.A.P. 302(a)




____________________________________________


3
  Section 3132, entitled “Manner of probate,” provides in relevant part that
“[a]ll wills shall be proved by the oaths or affirmations of two competent
witnesses.”



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(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).4

       Although not stated in their question presented, Appellants also argue

as a sub-issue of this first issue that the will should not have been admitted

to probate and summary judgment should not have been granted because

questions of material fact existed regarding (1) Testator’s testamentary

capacity, and (2) whether the will was the product of undue influence.

       Testamentary capacity exists when a testator is aware of the
       natural objects of his bounty, the composition of his estate and
       what he wants done with it, even if his memory is impaired by
       disease. The testator need not have the ability to conduct
       business affairs. Courts evaluate testamentary capacity on the
       date of the execution of the contested will. “Evidence of such
       state of mind may be received for a reasonable time before and
       after execution as reflective of decedent's testamentary capacity.
       This information can be supplied by lay witnesses as well as
       experts.” In re Agostini's Estate, 457 A.2d 861, 867 (Pa.
       Super. 1983).

In re Estate of Nalaschi, 90 A.3d at 12-13 (some internal citations and

quotations marks omitted).

       In the instant case, the trial court observed:

____________________________________________


4
  We note that the certified record contains no transcript of the proceedings
that occurred before the Register of Wills prior to the admission of the will to
probate on November 9, 2011. On December 20, 2011, at the hearing held
on Appellants’ Caveat, the Register of Wills stated that the will “appears to
be duly executed.” Notes of Testimony, 12/20/11, at 40. Appellants did not
object at that time, and made no attempt at any other time to rebut the
presumption, created after the will was admitted to probate, that the will
was executed with adherence to proper execution procedures. See In re
Estate of Nalaschi.



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      [P]roper execution of the August 18, 2011 will ha[d] been
     proven so there is a presumption of testamentary capacity. The
     Petitioners have failed to produce any evidence that the Testator
     lacked testamentary capacity. The facts of this case suggest just
     the opposite. The Testator was a strong-willed, independent
     woman [who] lived alone, managed her own affairs, held a job
     and called her bank nearly daily to check her statements. That
     does not suggest a woman who does not know the objects of her
     bounty and what she wants done with them.

Trial Court Opinion, dated 12/20/13, at 8-9.

     Discovery in this case was extensive. Appellants obtained hundreds of

pages of medical and bank records, none of which showed that Testator was

in any way incapacitated in the days leading up to, or on the date of, her

signing of the will.   Moreover, Appellants pointed to no evidence which

suggested that Testator did not have an understanding of her “bounty.”

Appellants   Wittman   and   Bloom   each   testified   as   to   their   mother’s

independent and stubborn nature; and, in fact, Wittman testified that

Testator called the bank nearly every day regarding the balances of her

accounts. Although Appellants attempt to support their contention of

incapacity with their own testimony about Testator’s status as a recovering

alcoholic, they did not present any evidence that on the day the will was

executed, Testator was anything other than sober and fully aware of the

substance of her estate. In fact, the evidence showed that Testator had had

a full physical examination by Dr. Pamela Nagy on August 18, 2011, the day

she executed the will—and Dr. Nagy had noted that Testator appeared to be



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healthy. Dr. Nagy expressed no concerns about Testator’s mental capacity.

Appellants produced no evidence that met their burden of proving

testamentary incapacity.      Accordingly, we conclude that the trial court did

not abuse its discretion or err as a matter of law in concluding that there

was no genuine issue of material fact regarding Testator’s testamentary

capacity.

         In arguing that the will was the product of undue influence, Appellants

conclude that “both Siedlarz and Campbell had confidential relationships with

Decedent, [Testator’s] psychological, physical and alcoholism combined with

prescription abuse [sic] weakened her intellect relative to the intellects of

Appellees’, and the interest each Appellee had in the estate could be

established on the record in this case.” Appellants’ Brief at 24. Appellants

also allege that Mr. Siedlarz would directly benefit from the execution of the

will naming Ms. Campbell as beneficiary because he was to receive a referral

fee from a lawyer representing Ms. Campbell in an unrelated case.

         The contestants of a will bear the burden of proving undue influence

with clear and convincing evidence that “(1) the testator suffered from a

weakened intellect at the time the will was executed; (2) there was a person

in a confidential relationship with the testator; and (3) the person in the

confidential relationship received a substantial benefit under the challenged

will.”   In re Estate of Nalaschi, 90 A.3d at 14 (citation omitted).       Once

each of these three elements are established by the contestant, the burden


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shifts back to the proponent to prove the absence of undue influence by

clear and convincing evidence. See In re Bosley, 26 A.3d 1104, 1108 (Pa.

Super. 2011).    The burden of clear and convincing evidence means that

“mere suspicions, opinions or beliefs not founded on established facts are

insufficient to support” a charge of undue influence. In re Paul’s Estate,

180 A.2d 254, 257 (Pa. 1962) (citations omitted).

      A confidential relationship exists “when the circumstances make it

certain that the parties do not deal on equal terms, with one side exercising

an over-mastering influence over the other[.]”        In re King’s Estate, 87

A.2d 469, 472 (Pa. 1952) (citations omitted).        With respect to “weakened

intellect,” this Court has observed:

      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. In a case
      of undue influence, a trial court has greater latitude to consider
      medical testimony describing a decedent's condition at a time
      remote from the date that the contested will was executed.
      However, if the court's decision rests upon legally competent and
      sufficient evidence, we will not revisit its conclusions. Our review
      of the court's factual findings is limited to considering whether
      those findings have support in the record.

In re Estate of Fritts, 906 A.2d 601, 607 (Pa.Super. 2006) (internal

citations and quotation marks omitted).

      In the instant case, the trial court stated:




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        Elizabeth Hazel Murphy Campbell was a close friend of the
        Testator for approximately twenty years after having met her at
        Alcoholics Anonymous.[5] Some of the estate documents which
        Mr. Siedlarz prepared for the Testator mention Ms. Campbell. Mr.
        Siedlarz prepared a document which indicated that the Testator
        considered naming Ms. Campbell her general power of attorney
        but it was never delivered.       The Testator also executed a
        subsequent power of attorney which did not name Ms. Campbell
        and revoked all prior power of attorneys. Mr. Siedlarz also
        prepared a document which gave Ms. Campbell medical power of
        attorney. However, that too was not delivered. Mr. Siedlarz
        also referred Ms. Campbell to Stephen Carroll, Esquire, to
        represent her in a legal matter in Montgomery County for which
        Mr. Siedlarz was to receive a referral fee.

        Occasionally, the Testator would have Ms. Campbell sign her
        checks because she was no longer able due to tremors in her
        hand (Tr. S. Wittman 48:14-17; Exhibit D to Motion for
        Summary Judgment). However, Petitioner Suzanne Wittman
        explained that Ms. Campbell signed the checks at the direction of
        the Testator (Id. 49:11-13). Ms. Wittman also testified that the
        Testator called her bank every day to check her balance and that
        the Decedent was very independent that way. (Id. 52: 12-16).

        As a close friend, Ms. Campbell occasionally took the Testator to
        the hospital and to rehab. (Id. 46: 14-47: 4). The Testator
        struggled with alcohol addiction but, nevertheless, was an
        independent woman who managed her own household, finances,
        and health and safety. In fact, Petitioner Wittman testified that
        the Testator was very independent, headstrong and stubborn.
        (Id. 16: 2-9; 52: 12-16). [Testator] also volunteered to help
        others who struggled with alcohol abuse and worked at a local
        thrift store where she dealt with the public on a daily basis.

        The Testator did not have much of a relationship with her
        children or grandchildren. Petitioner Wittman wrote in an email
        that the Testator had no relationship with her grandchildren, Ms.
        Wittman's daughters. (Email Chain; Exhibit 1 to Answer to
        Motion for Summary Judgment). Ms. Wittman also wrote that
        the Testator could do more for her children and grandchildren
____________________________________________


5
    Testator was Ms. Campbell’s sponsor at AA.



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      but does not and that the Testator has completely cut herself off
      from Ms. Wittman. (Id.). In addition, Ms. Wittman testified that
      she did not expect the Testator to leave anything to Michael
      Bloom, the Co-Petitioner. (Tr. S. Wittman 21:22-22:3).

      The Testator was prescribed several different medications and
      her cause of death was multiple drug intoxication. (Medical
      Examiner Report; Exhibit A to the Amended Petition). Dr. Steven
      Weinstein, a board certified psychiatrist and neurologist, testified
      that, even in combination and taken at a higher than
      recommended      dosage,     those    medications    would       not
      detrimentally effect the Testator’s mental functioning. (Tr.
      Steven Weinstein, M.D. 13: 21-14: 22; 36: 1-11).

Trial Court Opinion, dated 12/20/13, at 2-3.

      Although the trial court recognized that Ms. Campbell was to receive

the bulk of the estate, it concluded:

      [Appellants] have produced no evidence that either Mr. Siedlarz
      or Ms. Campbell was in a confidential relationship with the
      Testator. The strongest evidence that [Appellants] produced to
      support this element are the power of attorneys and drafts of
      power of attorneys drawn up by Mr. Siedlarz at the direction of
      the Testator. Mr. Siedlarz prepared a document which indicated
      that the Testator considered naming Ms. Campbell her general
      power of attorney but it was never delivered. The Testator also
      executed a subsequent power of attorney which did not name
      Ms. Campbell and revoked all prior power of attorneys. Mr.
      Siedlarz also prepared a document which gave Ms. Campbell
      medical power of attorney. However, that too was not delivered.
      Ms. Campbell was never given these power of attorneys [sic]
      and [Appellants] have produced no evidence that she even knew
      of their existence.     Therefore, these documents cannot be
      considered a clear indication of a confidential relationship.

      While the facts of this case demonstrate that the Testator and
      Ms. Campbell were close friends for about 20 years, friendship
      alone is insufficient to create a confidential relationship. The
      facts demonstrate that Ms. Campbell occasionally signed the
      Testator’s checks for her later in life due to a hand tremor, that
      she lived with her for a short time after the Testator came home
      from the hospital, and that she would take her to rehab and


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      doctors’ appointments.      … [T]he facts here show that the
      Testator’s mind was clear.       The Testator was consistently
      described as an independent woman who managed her own
      affairs. She also maintained a job at a local thrift store until
      shortly before she died where she dealt with the public on a daily
      basis.   In addition, the facts show that the Testator was
      independent, headstrong and stubborn. Someone with those
      characteristics is unlikely to be subject to an over-mastering
      influence by another and the [Appellants] have failed to produce
      facts which would suggest otherwise. Therefore, [Appellants]
      have failed to produce any evidence that there was a confidential
      relationship between the Testator and Ms. Campbell.

      As for Mr. Siedlarz, there are no facts to support the allegation
      that he exerted an over-mastering influence on the Testator. As
      the case law above states, the [Appellants] cannot sustain their
      burden by offering mere suspicions that are not founded on
      established facts.    If anything, the facts show a standard
      attorney[-]client relationship where Mr. Siedlarz altered estate
      documents according to the Testator’s directions and sought
      clarification and advice when something was ambiguous.
      Therefore, [Appellants] have failed to produce any facts to
      support the element of a confidential relationship between the
      Testator and Mr. Siedlarz.

Id., at 6-7 (emphasis added).

      Our review indicates that the trial court’s factual findings and legal

conclusions are fully supported by the record and case law. Accordingly, we

conclude that the trial court did not err in granting summary judgment to

Appellees.

      Appellants next aver that the trial court should have dismissed the

probate of the will because Appellee Siedlarz had “unclean hands.”

Appellants’ Brief at 25. In support, they cite to Mr. Siedlarz’s referral of Ms.

Campbell to another law firm on an unrelated matter for which he would

receive a referral fee. Appellants then reiterate their unsubstantiated

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argument about the failure of the second witness to testify before the

Register of Wills, and provide a reframed variation of their argument that

Mr. Siedlarz exerted undue influence over Testator. See Appellants’ Brief at

26–27.

      Appellants did not raise the doctrine of “unclean hands” below, and

this issue is thus waived. See Pa.R.A.P. 302(a). Moreover, even if we had

addressed it on the merits we would have found that it is without merit.

      Under the doctrine of unclean hands, a

      court may deprive a party of equitable relief where, to the
      detriment of the other party, the party applying for such relief is
      guilty of bad conduct relating to the matter at issue. The
      doctrine of unclean hands requires that one seeking equity act
      fairly and without fraud or deceit as to the controversy in issue.

Terraciano v. Department of Transportation, Bureau of Driver

Licensing, 753 A.2d 233, 237–38 (Pa. 2000) (citations omitted).

      In the instant case, Mr. Siedlarz is not a beneficiary under the will; he

is merely the executor.    Moreover, there is no record evidence to support

Appellants’ claims that Mr. Siedlarz will directly or indirectly benefit from Ms.

Campbell being named the beneficiary of the will. In response to Appellants’

argument of fraud below, the trial court stated:

      [Appellants] alleged that Mr. Siedlarz and Ms. Campbell
      misrepresented to the Testator that her children and
      grandchildren were well provided for with the intention of
      causing the Testator to leave her estate to Ms. Campbell.
      However, [Appellants] have failed in their response to the
      motion for summary judgment to put forth any material facts
      after extensive discovery to support their allegations. Instead,
      [Appellant] Bloom testified that he was unaware of any

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      documents that reflect upon fraud practiced by either Ms.
      Campbell or Mr. Siedlarz and [Appellant] Wittman testified that
      she did not think that there was any sort of conspiracy between
      Ms. Campbell and Mr. Siedlarz. Those two statements support
      the fact that there was no misrepresentation to the Testator that
      the children and grandchildren were well-provided for.         In
      addition, the facts demonstrate that the Testator was an
      independent woman who managed her own affairs[.]

Trial Court Opinion, dated 12/20/13, at 4-5.

      Our independent review of the record indicates that there is no

evidence that Mr. Siedlarz acted unfairly, fraudulently, or deceitfully in this

matter.    Appellants’ contention of unclean hands is, thus, without merit.

Accordingly, even if this issue were not waived, we would not grant relief.

      Lastly, Appellants aver that the trial court erred or abused its

discretion when it denied their request for sanctions under Pa.R.C.P.

4019(c)(1) on September 16, 2013. In support, Appellants provide a nearly

incoherent argument averring that Appellees obstructed their efforts to

obtain    discovery,   before   concluding   that   they   were   prevented   from

responding to the summary judgment motion.

      Contrary to their contention, Appellants did respond to the summary

judgment motion by filing a response to the motion for summary judgment

and a “Brief in Support of Response” to the motion for summary judgment.

In addition, Appellants’ counsel provided a vigorous argument against

summary judgment during the hearing held on October 16, 2013.

      In their brief, Appellants do not indicate exactly what sanction they

were seeking or allege exactly how the trial court erred. They do not cite to

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the transcript of the September 16, 2013 hearing that actually occurred on

their motion for sanctions.    Moreover, Appellants do not discuss Rule

4019(c)(1) or provide citation to relevant case law or other authority

pertaining to discovery sanctions.   They have essentially failed to comport

with the requirements of Pa.R.A.P. 2119.      Because Appellants have not

provided a coherent, developed argument supported by relevant authority,

we conclude that this issue is waived. See, e.g., Coulter v. Ramsden, 94

A.3d 1080, 1088-89 (Pa. Super. 2014), appeal denied, 403 WAL 2014 (Pa.

filed Dec. 10, 2014) (observing that Pa.R.A.P. 2119 requires that argument

be developed for each issue raised with citation to authority in support of

each contention, and appellate arguments which fail to adhere to Rule 2119

may be considered waived).

     Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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