J-A22005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD KELLER, ET AL,                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

RALPH MILLER, ET AL,

                          Appellee                  No. 2057 MDA 2014


              Appeal from the Order Entered November 5, 2014
              In the Court of Common Pleas of Lebanon County
                     Civil Division at No(s): 2009-02124


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 01, 2015

       Richard, Randy, and Edwin Keller (“the Kellers”), the sons of the

decedent, Mary Keller, commenced this action against their cousin Deborah

Miller and her husband Ralph (“the Millers”), seeking to recover the proceeds

of the sale of their mother’s former home on Kathleen Street.           They

maintained that their mother told them on a number of occasions that,

although she transferred the house to Deborah, she instructed Deborah that,

if the house was sold, the proceeds were to be divided equally among the

Kellers. The Kellers alleged that Deborah sold the home, converted the sales

proceeds, and fraudulently transferred them to herself and her husband.

They sought an accounting and a constructive trust of the proceeds from the

sale. The trial court entered summary judgment in favor of Deborah, after
*
    Retired Senior Judge assigned to the Superior Court.
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concluding that the testimony upon which the Kellers based their claim to

the proceeds of the house was inadmissible hearsay and barred by the

statute of frauds. We affirm.

      The record reveals that Deborah was Mary’s attorney-in-fact pursuant

to a power of attorney executed in 1990.        She was also the designated

executrix under Mary’s 1997 will.     During the 1990s, Mary Keller and her

husband, John, owned the Kathleen Street property. John died in 2001 and

Mary subsequently conveyed the property to Deborah on October 28, 2003.

Two months later, Mary executed a codicil to her 1997 will in which she

devised the Kathleen Street property to Deborah and noted therein that the

real estate was already deeded to her.      She bequeathed the remainder of

her estate to her three sons in equal shares.

      On September 11, 2007, Deborah sold the Kathleen Street property

for $121,500.    The proceeds were placed in a joint account with her

husband. Mary died on June 9, 2009. The Kellers filed the within complaint

on November 11, 2009, in which they sought to recover the proceeds of the

sale of their mother’s former home, based on certain statements Mary

allegedly made to them.         They averred that Mary told them that she

instructed Deborah to divide the proceeds from any sale of the Kathleen

Street property among them.

      The court granted the Kellers’ demand for an accounting pursuant to

35 Pa.C.S. § 3501.1, which was based on allegations that Deborah had

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misused Mary’s funds while acting as her attorney-in-fact for the two and

one-half years prior to Mary’s death. However, the Kellers abandoned their

claims that Deborah had misappropriated Mary’s funds prior to trial.

       On October 14, 2014, the date of the pre-trial conference, the Millers

filed a motion for summary judgment in which they alleged inter alia,1 that

the Kellers could not introduce the statements allegedly made by Mary due

to the Dead Man’s Act, the statute of frauds, the rules against hearsay, and

the parol evidence rule. Without such evidence, they could not recover. The

Kellers responded with a motion in limine seeking an evidentiary ruling on

the admissibility of Mary’s out-of-court statement that she instructed

Deborah to divide the proceeds from the sale of the Kathleen Street property

among the Kellers.

       The trial court concluded that the Dead Man’s Act and the parol

evidence rule did not operate to preclude admission of Mary’s purported

statements, but that the statements were inadmissible hearsay and

precluded by the statute of frauds. The court concluded that, absent such


____________________________________________


1
  Deborah also alleged that the accounting had revealed no irregularities in
her expenditures and that the misappropriation issue had been abandoned.
In addition, the Kellers’ allegations that Mary’s transfer of the house was due
to Deborah’s undue influence required expert medical testimony establishing
Mary’s diminished capacity. The Kellers acknowledged that they did not
intend to introduce such testimony. Deborah maintained that the Kellers
could not prove any theory of recovery at trial.



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evidence, the Kellers could not prevail and summary judgment was granted.

This appeal followed. The Kellers present two issues for our review:

      1. Was the trial court correct in ruling that the statements of a
         now-deceased mother to her three sons (Appellants here),
         telling those sons that the mother conveyed a specific parcel
         of real estate to her niece (one of the Appellees here) with
         the expressed instruction that the niece give to the sons the
         proceeds of sale when the niece sold the property were
         inadmissible hearsay because they would have been offered
         to show that the mother actually made the instruction to the
         niece (the ultimate issue in the case), or alternatively, would
         have been admissible as an exception to the hearsay rule in
         that the statements showed the now-deceased mother’s then-
         existing state of mind?

      2. Was the trial court correct in ruling that the same evidence
         described in the previous Question Presented was barred by
         the Statute of Frauds when the statements did not and do not
         purport to create an interest in real estate for any of the
         Appellants, but instead imposed requirements on Appellee
         Deborah Miller with respect to funds, such requirements by
         definition only applying if and when Appellee would (and did)
         surrender her own interest in a certain parcel of real estate?

Appellants’ brief at 3.

      Summary judgment is proper where there is no genuine issue of

material fact and the moving party is entitled to relief as a matter of law.

Pa.R.C.P. 1035.2. Where, as here, the non-moving party bears the burden

of proof, “he may not merely rely on his pleadings or answers in order to

survive summary judgment.”      Murphy v. Duquesne Univ. of the Holy

Ghost, 777 A.2d 418, 429 (Pa. 2001).           Unless a non-moving party

“adduce[s] sufficient evidence on an issue essential to its case and on which




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it bears the burden of proof,” the moving party is entitled to judgment as a

matter of law. Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000).

      In reviewing the trial court’s grant of 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. Capek v. Devito, 767

A.2d 1047, 1048, n.1 (Pa. 2001). As with all questions of law, our review is

plenary.   Phillips v. A-Best Products Co., 665 A.2d 1167, 1170 (Pa.

1995). In making our determination, we 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, supra at 429.

      Herein, an evidentiary ruling culminated in the grant of summary

judgment. “It is well settled that the admission or exclusion of evidence is a

matter within the sound discretion of the trial court, which may only be

reversed upon a showing of a manifest abuse of discretion.”        Eichman v.

McKeon, 824 A.2d 305, 319 (Pa.Super. 2003).          “[A]n abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be

clearly erroneous."   Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012)

(quoting Paden v. Baker Concrete Constr., 658 A.2d 341, 343 (Pa.

1995)).

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       Preliminarily, we note that the Kellers seek to recover the proceeds

from the sale of the Kathleen Street property owned by Deborah based on

Mary’s alleged oral direction that Deborah split the proceeds among them.

Yet, they have not pled an oral agreement between Mary and Deborah, or a

breach of such an agreement.             Moreover, they insist that they are not

seeking to enforce an oral contract. In addition, the Kellers abandoned their

claim that Deborah unduly influenced their mother, which was the basis for

imposition of a constructive trust.2

       The Kellers bore the burden of proving that their mother conveyed the

Kathleen Street property to Deborah with the condition that, upon its sale,

she pay the proceeds to them in equal shares. There is no writing evidencing

that proviso. The deed conveyed the property to Deborah in fee simple, and

the Kellers stipulated that the deed was duly executed and valid.         In her

2003 codicil to the 1997 will, Mary acknowledged that the Kathleen Street

property had been deeded to Deborah, bequeathed her personal property to

Deborah, but directed Deborah to permit each of her sons to choose some

personal property prior to its sale. The codicil did not reference or confirm


____________________________________________


2
  Although the Kellers originally pled that Deborah exerted undue influence
over Mary and “was thereby able to induce Mary A. Keller to divert Mary A.
Keller’s assets to her and away from her sons, who were the natural objects
of her bounty[,]” they abandoned any claim of undue influence prior to trial.
Complaint, ¶ 29, at 6.



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any prior instruction to Deborah to convey the proceeds from a subsequent

sale of the house to the sons.

      In their pre-trial statement, the Kellers represented that “most if not

all of our witnesses will be testifying to statements of intent of Mary Keller

while she was living.” Plaintiffs’ Pre-Trial Statement, 8/14/14, at 4. It was

undisputed that Mary conveyed the Kathleen Street property to Deborah in

fee simple.   Nonetheless, the Kellers would testify that their mother told

them that she directed Deborah to transfer the proceeds from any sale of

the house to them.     Adamant that that they were not proceeding on a

contract theory, the Kellers alleged that Deborah failed to obey Mary’s

directive to transfer the sale proceeds to the sons. Id. at ¶ 30.

      The Kellers argue first that their mother’s statements to them are not

hearsay because they offered them not to prove the truth of the matter

asserted but only to show that Mary gave the instruction to Deborah Miller,

“the central fact at issue in the present case.” Appellant’s brief at 15. The

Kellers rely upon American Future Systems, Inc. v. Better Business

Bureau of Eastern Pennsylvania, 872 A.2d 1202 (Pa.Super. 2005), where

out-of-court customer complaints were held not to be hearsay because they

were offered to prove that complaints were made, not that the complaints

were credible. Herein, the trial court rejected this argument, finding that the

statement itself was not an instruction but was being offered to prove the




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truth of the matter asserted: that Mary gave a specific instruction to

Deborah.

      We agree with the trial court.   Pa.R.E. 801(c) defines hearsay as “a

statement that (1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth

of the matter asserted in the statement.” The official comments to Pa.R.E.

801 explain that questions, exclamations, offers, instructions, warnings, and

other non-assertive communications are not hearsay.           A statement is

hearsay only if offered to prove the truth of the matter asserted in the

statement.   The comments further explain that sometimes statements are

legally significant regardless of whether they are true or false, such as a

statement constituting an offer, acceptance, or notice. Such statements are

not hearsay when simply offered to prove that they were made.

      The statement herein was not an instruction.        The Kellers offered

Mary’s out-of-court statement to prove that she gave an instruction to

Deborah, which was the matter asserted in the statement.         Thus, it was

offered for the truth of the matter asserted and constitutes inadmissible

hearsay.

      Alternatively, the Kellers maintain that their mother’s statement falls

within the hearsay exception for the declarant’s state of mind under Pa.R.E.

803(3), which provides:




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      (3) Then-Existing Mental, Emotional, or Physical Condition. A
      statement of the declarant's then-existing state of mind (such as
      motive, intent or plan) or emotional, sensory, or physical
      condition (such as mental feeling, pain, or bodily health), but not
      including a statement of memory or belief to prove the fact
      remembered or believed unless it relates to the validity or terms
      of the declarant's will.

     As this Court held in Schmalz v. Mfrs. & Traders Trust Co., 67 A.3d

800, 802 (Pa.Super. 2013), the state of mind exception is ordinarily

applicable in three circumstances. It may be used to prove the declarant's

state of mind when that state of mind is an issue directly related to a claim

or defense in the case.        The exception has also been invoked to

circumstantially prove that a declarant, after making the statement, acted in

conformity with his or her statement.      See Commonwealth v. Riggins,

386 A.2d 520, 526 (Pa. 1978) (victim’s sister permitted to testify that victim

stated to her on the evening of the killing, after a phone call, that defendant

was expected to visit the home later that evening to show willingness of

victim to admit him and opportunity for the defendant to commit the

murder). Finally, an out of court statement related to the person's memory

or belief is admissible in the limited instance where it relates to the

"execution, revocation, identification or terms of the declarant's will."

Pa.R.E. 803(3).

      We held in Commonwealth v. Begley, 780 A.2d 605, 623 (Pa.

2001), that “the determination of whether out-of-court statements are

admissible under the state of mind exception to the hearsay rule is within

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the sound discretion of the trial court and will be reversed only upon an

abuse of that discretion.”   Therein, the trial court ruled that the victim’s

brother could testify that his sister told him in casual conversation that she

was going to get a job from the defendant for $15 an hour guarding a

female victim/witness in a safe house.         The court reasoned that the

testimony was admissible under the state of mind exception to the hearsay

rule as circumstantial evidence that, shortly before her disappearance, the

victim intended to accept that job, and she subsequently acted in

accordance with her stated intent.     Additionally, the trial court specifically

instructed the jury that it could only consider the testimony to establish the

victim’s intent at the time of the conversation. N.T., 7/16/96, at 555.       In

affirming, the Supreme Court reiterated the rationale for the state of mind

exception:

            Intention, viewed as a state of mind, is a fact, and the
      commonest way for such a fact to evince itself is through spoken
      or written declarations. It is therefore because of the
      impossibility, in many cases, of proving intention apart from
      personal declarations, that they are admitted. The true basis of
      their admission, then, is necessity, because of which an
      exception to the hearsay rule is recognized. . . .
      Commonwealth v. Marshall, 287 Pa. 512, 522, 135 A. 301,
      304 (1926).

Begley, supra at 624.

      The Kellers contend that the proffered statement is a declaration of

their mother’s intent and plan.    We disagree.      The statement does not

describe Mary’s future intent but relates to past events. The Kathleen Street

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property had already been deeded to Deborah and any alleged instruction

would have been given prior to that conveyance.       While an out-of-court

statement is admissible to prove that the declarant subsequently acted in

conformity with that statement, the Kellers impermissibly proffer it to prove

the truth of past events. See Commonwealth v. Levanduski, 907 A.2d 3

(Pa.Super. 2006) (en banc) (a statement relating to past events based on

memory or belief is not admissible under Pa.R.E. 803(3) to establish the

truth of those events, absent relation to the execution, revocation,

identification, or terms of the declarant's will).

      We agree with the trial court that the state of mind exception to the

hearsay rule is inapplicable on the facts herein.      We find the Kellers’

allusions to their mother’s state of mind were being "used as a conduit to

support the admission of fact-bound evidence to be used for a substantive

purpose." Schmalz, supra (quoting Commonwealth v. Moore, 937 A.2d

1062, 1073 n.6 (Pa. 2007)). Having correctly concluded that Mary’s alleged

oral statement was inadmissible hearsay, the trial court properly found that

without it, the Kellers could not prove their claim and granted summary

judgment. Thus, we need not reach the issue as to whether the statute of

frauds also operated to bar such evidence.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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