J-A29021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: CAROL SHINER                        :   IN THE SUPERIOR COURT OF
    ROSENBLOOM, AN INCAPACITATED               :        PENNSYLVANIA
    PERSON                                     :
                                               :
                                               :
    APPEAL OF: RICHARD C.                      :
    ROSENBLOOM, M.D.                           :
                                               :
                                               :   No. 621 WDA 2019


                  Appeal from the Order Entered March 1, 2019,
               in the Court of Common Pleas of Allegheny County,
                    Orphans' Court at No(s): No. 021604661.


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 14, 2020

        Dr. Richard C. Rosenbloom, M.D., appeals that portion of an order of the

orphans’ court gifting the home of his incapacitated wife, Carol Shiner

Rosenbloom, Esq., to their daughter, Kate Rosenbloom. The orphans’ court

has full authority under the Probate, Estates, and Fiduciaries Code (“PEFC”)1

to dispose of estate assets in the manner that the orphan’s court believes the

incapacitated person2 would wish. We therefore affirm its decision to give the

home to Kate on Ms. Rosenbloom’s behalf.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   20 Pa.C.S.A. §§ 101-8815.

2 “‘Incapacitated person’” means an adult whose ability to receive and
evaluate information effectively and communicate decisions in any way is
impaired to such a significant extent that he is partially or totally unable to
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         This guardianship matter began August 22, 2016, when Dr. Rosenbloom

petitioned the Orphans’ Court of Allegheny County to have Ms. Rosenbloom

adjudged an incapacitated person. The court granted his request two months

later.    It simultaneously appointed Aligned Partners Trust Company (“the

Guardian”) the plenary guardian of Ms. Rosenbloom’s estate.3

         The Guardian subsequently petitioned to invalidate certain gifts that Ms.

Rosenbloom had given to Kate in July of 2016.         Ms. Rosenbloom gave Kate

title to a home (at 153 Hartwood Drive in Pittsburgh, Pennsylvania) and

certain investment accounts worth approximately $283,000. Kate had resided

in the home for several years and had made substantial improvements to it.

All told, the home and the accounts had a combined, potential worth of

$1,000,000.

         The orphans’ court found that Kate exerted undue influence over Ms.

Rosenbloom and negated the transfer of the $283,000 accounts to Kate.

However, it refused the Guardian’s request to negate the gift of the Hartwood

Drive home to Kate, because it found that Ms. Rosenbloom wanted to give the

home to Kate, despite any undue influence. The orphans’ court entered an

order to that effect, and Dr. Rosenbloom, who intervened below, has timely

appealed.
____________________________________________


manage his financial resources or to meet essential requirements for his
physical health and safety.” 20 Pa.C.S.A. § 5501.

3 Several other individuals and agencies have served as limited guardians of
Ms. Rosenbloom’s person. Their identities are irrelevant to the disposition of
this appeal.

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       He raises two claims of error. They are:

          1.     Whether the [orphans’] court erred in upholding the
                 transfer of the Hartwood Residence despite finding
                 . . . that Ms. Rosenbloom was incapacitated at the
                 time she transferred the Hartwood Residence to Kate
                 Rosenbloom.

          2.     Whether the [orphans’] court erred in upholding the
                 transfer of the Hartwood Residence despite finding
                 . . . that Ms. Rosenbloom was subjected to undue
                 influence by Kate Rosenbloom, especially with respect
                 to the disposition of Ms. Rosenbloom’s estate, at the
                 time of the transfer of the Hartwood Residence.

Rosenbloom’s Brief at 3. Because these two issues are essentially the same

claim, argued on two different grounds, we address them simultaneously.

       Dr. Rosenbloom asserts (and the Guardian agrees)4 that the orphans’

court erred when it opined as follows:

          Although the [orphans’ court] believes that voiding both the
          deed transfer and the securities transfer would be
          permissible under the law and circumstances, the [orphans’
          court] finds that [Ms. Rosenbloom’s] desire to transfer the
          residence to [Kate] was a long-standing intention and not a
          sudden decision.     On the other hand, the transfer of
          $283,000 in securities and the forgiveness of the loans was
          a new decision on the part of [Ms. Rosenbloom] in June-July
          2016, at which time she was cognitively impaired and
          incapable of making an informed decision to transfer
          significant funds to her daughter. As such, the Court
          directed Ms. Rosenbloom to return the sum of $283,188 to
          [the] estate, but did not void the deed [to the home].

Orphans’ Court Opinion, 5/20/19, at 6.
____________________________________________


4 See Guardian’s Application to Allow Participant to Join in Appeal, 8/7/19.
See also August 21, 2019 Order of Superior Court (granting Guardian’s
request to join Dr. Rosenbloom’s appeal).

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      According to Dr. Rosenbloom, the decision of the orphans’ court to

uphold the deed transfer to Kate was incorrect, because the court had decreed

Ms. Rosenbloom incapacitated. In his view, there was no competent evidence

of record to support the factual finding of the orphans’ court that Ms.

Rosenbloom had a long-standing desire to give the Hartwood Drive property

to Kate.    See Rosenbloom’s Brief at 15.        He also contends that, once the

orphans’ court concluded Ms. Rosenbloom was incapacitated and Kate exerted

undue influence over her, “the burden shifts to the person accused of undue

influence    to   prove   by   clear   and   convincing   evidence   rebutting   the

presumption.” Id. at 16. Thus, Dr. Rosenbloom’s advances a two-pronged

attack against the order. The first is factual; the second is legal.

      When we review a decision of the orphans’ court:

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

In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa.Super. 2004) (citation

omitted).

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      This Court must review the orphans’ court’s findings of fact with the

same degree of deference as we would review a jury’s findings. Regarding

such findings, we have explained that “as finder of fact, [the judge] is free to

believe all, part, or none of the evidence, and this Court will not disturb his

credibility determinations.”     Williams v. Taylor, 188 A.3d 447, 450

(Pa.Super. 2018) (citing Voracek v. Crown Castle USA Inc., 907 A.2d 1105,

1108 (Pa.Super. 2006)). A judge of the orphans’ court, who heard and saw

the witnesses testify and who had the sole power to determine their credibility,

is in a far better position than this Court to decide the truth.

      Dr. Rosenbloom asserts that there was no evidence of record to support

that orphans’ court’s finding that Ms. Rosenbloom had wanted to give her

Hartwood Drive home to Kate.       However, when asked why she decided to

transfer the home to Kate, Ms. Rosenbloom testified that the home had

originally belonged to her parents and that she desired “[t]hat my daughter

would be living in my parents’ house. And I was thrilled that [Kate] wanted

to.” N.T., 10/4/18, at 121-22.

      Dr. Rosenbloom asserts that this testimony of Ms. Rosenbloom “is of no

probative value,” because the orphans’ court had declared her incapacitated

prior to that hearing.   Rosenbloom’s Brief at 23.     However, he cites to no

authority for that proposition. See id. Nor does our research reveal any.

      On the contrary, the general rule is that all persons are competent to

testify, and the probity of their testimony is for the finder of fact to resolve.

“Because the Orphans’ Court sits as the fact-finder, it determines the

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credibility of the witnesses and, on review, we will not reverse its credibility

determinations absent an abuse of that discretion.”            In re Estate of

Cherwinski, 856 A.2d at 168.5

       The pertinent Rule of Evidence provides:

          (a)    General Rule. Every person is competent to be a
                 witness except as otherwise provided by statute or in
                 these rules.

          (b)    Disqualification for Specific Defects. A person is
                 incompetent to testify if the court finds that because
                 of a mental condition or immaturity the person:

                   (1)    is, or was, at any relevant time, incapable
                          of perceiving accurately;

                   (2)    is unable to express himself or herself so
                          as to be understood either directly or
                          through an interpreter;

                   (3)    has an impaired memory; or

                   (4)    does not sufficiently understand the duty to
                          tell the truth.

Pennsylvania Rule of Evidence 601.

       Dr. Rosenbloom does not contend that Ms. Rosenbloom was disqualified

from testifying under Pa.R.E. 601(b), nor did he object to her competency in

the orphans’ court when she appeared to testify. See N.T., 10/4/18, at 103.

Thus, he may not now claim her testimony was of no probative value, when
____________________________________________


5 Despite citing In re Estate of Cherwinski, 856 A.2d 165 (Pa.Super. 2004),
in his Statement of Scope and Standard of Review, Dr. Rosenbloom overlooks
the case’s holding that an abuse of discretion is required to overturn the
factual findings of an orphans’ court. Nor does he claim such an abuse of
discretion occurred when the orphans’ court credited Ms. Rosenbloom’s
testimony that she wanted Kate to have the home.

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he failed to object under the Rules of Evidence below. See, e.g., Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal”).

      This Court is not a finder of fact. Any impact that Ms. Rosenbloom’s

incapacitation may have had on her credibility went to the weight to be

afforded her testimony, not her competency under Pa.R.E. 601. That was a

matter of fact for the orphans’ court to resolve, in its sole discretion.   It did

so and found Ms. Rosenbloom credible in this regard. Thus, “[w]e find that

the orphans’ court’s determinations are supported by competent and adequate

evidence, and we will not disturb on appeal its credibility determination on this

basis.” In re Estate of Cherwinski, 856 A.2d at 168.

      We now turn to Dr. Rosenbloom’s legal challenge to the decision. He

believes that, because the orphans’ court deemed Kate to have exerted undue

influence over Ms. Rosenbloom, to retain the home, Kate must disprove any

undue influence by clear and convincing evidence.        Dr. Rosenbloom relies

upon Thomas v. Seaman, 304 A.2d 134 (Pa. 1973), for the premise that

Kate “did not meet her heavy burden” to disprove the elements of undue

influence. Rosenbloom’s Brief at 26-27.

      Any reliance upon Thomas is misplaced. There, two elderly sisters lived

alone. One sister died, and the other, Beulah Seaman, retained a piece of

farmland. Their brother, Dewey, began visiting Beulah daily. He eventually

convinced her to visit an attorney with him, so he could “buy” the farm from

her. In the attorney’s office, Dewey told Beulah not to worry about signing

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the deed over to him, because her niece Joan Thomas knew of the deal and

“was ‘delighted’ by it.” Thomas, 304 A.2d at 136. Beulah insisted on keeping

a life estate in the property. The attorney revised the deed, and Beulah signed

it, despite there being no purchase price.

       Beulah then moved onto the farm with Dewey and his wife, with the

understanding that her brother and sister-in-law would care for her. A few

months later, they forced her to leave. Next, Beulah hired a lawyer of her

own and sued in equity to have the deed voided on the grounds of fraud and

undue influence. The chancellor granted her relief, Dewey appealed, and the

Supreme Court of Pennsylvania affirmed.

       Critically, Thomas was not an orphans’ court proceeding; it was an

equity matter. Thus, the PEFC was not in issue, and the Supreme Court of

Pennsylvania did not consider or apply any of its terms. As such, Thomas

says nothing about the powers of the orphans’ court to distribute property

under its control in an incapacity proceeding. Moreover, unlike the instant

case, where Ms. Rosenbloom wanted and continued to want to give the

property to Kate, Beulah never wanted Dewey to own her farm. Thus, the

facts of Thomas are totally unrelated to those at bar. However, in both cases,

we note that the court of equity and the orphans’ court each took steps to

effectuate the desires of the unduly influenced party. 6    Thus, if anything,

____________________________________________


6We also note that, Thomas v. Seaman, 304 A.2d 134 (Pa. 1973) does not
hold, as Dr. Rosenbloom suggests, that Dewey lost, because the burden of



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Thomas’ result supports the actions of the orphans’ court in carrying out Ms.

Rosenbloom’s desires.

       Having distinguished Thomas on both its facts and law, we now review

the statute applicable in the orphans’ court – the PEFC. When interpreting

any statute, we are mindful that:

          “The object of all interpretation and construction of statutes
          is to ascertain and effectuate the intention of the General
          Assembly,” 1 Pa.C.S.A. § 1921(a). The Act counsels that
          “when the words of a statute are clear and free from all
          ambiguity, the letter of it is not to be disregarded under the
          pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). When
          the words of a statute are not explicit, the General
          Assembly’s intent is to be ascertained by considering
          matters other than statutory language, like the occasion and
          necessity for the statute; the circumstances of its
          enactment; the object it seeks to attain; the mischief to be
          remedied; former laws; consequences of a particular
          interpretation; contemporaneous legislative history; and
          legislative and administrative interpretations. 1 Pa.C.S.A. §
          1921(c).


____________________________________________


proof shifted to him. See Rosenbloom’s Brief at 26-27 (citing Thomas, 304
A.2d at 138). The Supreme Court said, “the burden of proving undue influence
rests upon the party asserting it, unless that party can prove a confidential
relationship between the grantor and grantee, in which case the burden of
proof must shift to the party asserting the validity of the deed to prove it was
obtained by the free, voluntary and intelligent act of the grantor.” Id. at 138.

       The High Court did not resolve the question of whether a confidential
relationship existed. However, it ultimately concluded that Beulah “adduced
sufficient evidence, as a matter of law, to support a finding of undue
influence.” Id. In short, the burden of proof never shifted to Dewey. As
such, Dr. Rosenbloom’s attempt to shift a “heavy burden” onto Kate by
analogizing her to Dewey fails. Rosenbloom’s Brief at 27. We therefore are
unpersuaded that any burden shifted to Kate to disprove undue influence, in
order to retain the home.

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In re Admin. Order No. 1-MD-2003, 936 A.2d 1, 6 (Pa. 2007) (case

citations and some punctuation omitted).

      Here, the Guardian petitioned the orphans’ court to invalidate the deed

that transferred the Hartwood Drive home from Ms. Rosenbloom to Kate,

pursuant to Section 5536 of the PEFC. That statute provides, in relevant part,

that the orphans’ court:

         upon petition and with notice to all parties in interest and
         for good cause shown, shall have the power to
         substitute its judgment for that of the incapacitated
         person with respect to the estate and affairs of the
         incapacitated person for the benefit of the incapacitated
         person, his family, members of his household, his friends
         and charities in which he was interested. This power shall
         include, but is not limited to, the power to:

            (1) Make gifts, outright . . . .

20 Pa.C.S.A. § 5536(b) (emphasis added).

      The wording of Section 5536(b)(1) is clear and unambiguous.         The

General Assembly authorized the orphans’ court to make gifts of any asset in

an estate by substituting its judgment for that of an incapacitated person.

Such gifts must be “for the benefit of the incapacitated person, his family,

members of his household, his friends and charities in which he was

interested.” Id.

      Here, the orphans’ court exercised its statutory power to give the

Hartwood Drive property to Kate, for her benefit, from Ms. Rosenbloom. The

orphans’ court gifted the home outright to Kate on behalf of Ms. Rosenbloom,

because it found that making that gift would effectuate Ms. Rosenbloom’s


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desire for Kate to live in the home that once belonged to Ms. Rosenbloom’s

parents. Kate was a family member (i.e., the daughter) of Ms. Rosenbloom

(i.e., the incapacitated person).

      Based on the testimony of Ms. Rosenbloom, the orphans’ court found

that she truly wanted to give that home to Kate. Under Section 5536(b)(1),

the orphans’ court could do so pursuant to its power to substitute its

judgment, even though it previously found that Kate unduly influenced Ms.

Rosenbloom.

      We know of no case – and Dr. Rosenbloom cites none – holding that a

finding of undue influence deprives the orphans’ court of its statutory power

to distribute the property from the estate thereafter, as the court sees fit. We

decline to so hold now.

      In sum, Dr. Rosenbloom instituted this proceeding to have his wife

deemed an incapacitated person. The orphans’ court granted his petition, but

that does not mean Dr. Rosenbloom may now dictate Ms. Rosenbloom’s affairs

for her.   Effectively, pursuant to Section 5536 of the PEFC, he asked the

orphans’ court to substitute its judgment for hers in that regard. The court

did so, and we find no error of law or abuse of discretion in it fulfilling Ms.

Rosenbloom’s wish that Kate own the Hartwood Drive home.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




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