J-A12024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ESTATE         OF   EDWARD
                               V. : IN THE SUPERIOR COURT OF
SOKOLOWSKI,                       :      PENNSYLVANIA
                                  :
                                  :
                                  :
APPEAL OF: DAVID SOKOLOWSKI, :
ADMINISTRATOR D.B.N.C.T.A. OF THE :
ESTATE OF EDWARD V. SOKOLOWSKI, :
DECEASED                          : No. 1791 MDA 2014

               Appeal from the Order entered October 6, 2014,
                  Court of Common Pleas, Luzerne County,
                     Orphans’ Court at No. 4007-00554

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 09, 2015

       David Sokolowski (“Petitioner”), administrator d.b.n.c.t.a.1 of the

Estate of Edward V. Sokolowski (“Decedent”), appeals from the October 6,

2014 order entered by the Luzerne County Court of Common Pleas denying

his petition for the imposition of a constructive trust upon transfers of money

and property from Decedent to Barbara Stanishefski (“Stanishefski”) made

in the final year of Decedent’s life. After careful review, we affirm.

       The facts and procedural history relevant to this appeal are as follows.

During his lifetime, Decedent was a priest in the Roman Catholic Church.

Sometime in 1967, he became a priest at St. Mary’s Czestochowa (“St.

Mary’s”) in Swoyersville, Pennsylvania, where Stanishefski had served as a

volunteer for his predecessors for several years.             Stanishefski was



1
    See 20 Pa.C.S.A. § 3159.
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approximately seventeen years old when Decedent came to St. Mary’s. Her

responsibilities at St. Mary’s under Decedent involved emptying the money

from collection envelopes and posting them, compiling reports for the

Bishop, and balancing the books.

      Following her graduation from high school, she began to work at RCA

in Mountain Top, Pennsylvania, but continued to volunteer at St. Mary’s

helping Decedent.2    According to Stanishefski, Decedent began having her

write out, sign his name and distribute checks for certain church functions,

which she did, at his direction.

      Decedent retired in 1992 at the age of seventy-five.       He invited

Stanishefski to move into his house and live with him in Mountain Top and

she accepted.     In exchange for living there rent-free, Stanishefski was

responsible for purchasing food and doing the cooking, cleaning, grocery

shopping, errands and laundry. Decedent paid the utility bills. Stanishefski

wrote checks and paid bills from Decedent’s personal checking account at

Decedent’s direction, much like she did when she worked at St. Mary’s.

Sometimes Decedent signed checks in blank for Stanishefski to fill out and

other times Stanishefski signed Decedent’s name to checks, at his direction.

According to Stanishefski, she made payments and filled out checks from

Decedent’s accounts only when so instructed by Decedent.



2
  In or around 1981, the position became a paid one for Stanishefski, with
her earning $100 per month for her duties.


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      In a will executed in 1997, Decedent included a provision providing

Stanishefski the option to purchase their shared residence for $95,000. In

this will, Decedent left all of his tangible personal property inside of his home

to his younger brother, Casimer Sokolowski, and two younger sisters,

Geraldine Toone and Eleanor Lewczyk (collectively, “Decedent’s siblings”),

and named his siblings as residuary legatees.        He named his brother as

executor of his estate.

      Decedent underwent back-to-back heart surgeries in 2001, following

which Stanishefski provided greater assistance to him.           Also in 2001,

Decedent sold the house to Stanishefski for $70,000, consideration for which

included a $40,000 purchase money mortgage. Shortly thereafter, Decedent

amended his will, removing the then-irrelevant provision regarding the sale

of the house to Stanishefski.     Also in this version of the will, Decedent

named Stanishefski as the beneficiary of his tangible personal property,

permitting, but not requiring, her to distribute his personal property to his

siblings; named his siblings as residuary legatees; and nominated his

attorney, John D. Sieminski, Esquire (“Attorney Sieminski”) as his executor,

and Decedent’s brother as successor executor. Decedent further executed a

durable power of attorney, naming Attorney Sieminski as his agent therein,

and a health care power of attorney, naming Stanishefski as his agent

therein.




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      In 2005, Decedent’s health began to deteriorate further, requiring the

introduction of help from a home healthcare agency.        The record reflects

that Stanishefski signed the intake paperwork on Decedent’s behalf. A few

months later, Decedent forgave the $40,000 debt owed by Stanishefski for

the purchase of the house.

      In the final year of his life, Stanishefski deposited into her personal

bank account several checks written from Decedent’s accounts totaling

$130,000.      Stanishefski also provided payment from Decedent’s personal

accounts for coins allegedly purchased by Decedent, or by Stanishefski at

Decedent’s direction, during his lifetime.   Decedent and Stanishefski lived

together in the house until Decedent died on March 8, 2007 at the age of

eighty-nine.

      On    October   30, 2008,   Attorney   Sieminski   filed   a   Petition   for

Adjudication (Statement of Proposed Distribution) in the orphans’ court.

Pursuant to an agreement reached between Attorney Sieminski and

Decedent’s siblings, Sieminski requested that the orphans’ court confirm and

approve his first and final account as executor of Decedent’s will; permit him

to transfer all information pertaining to the administration of Decedent’s

estate to Decedent’s brother as successor executor; discharge Attorney

Sieminski as executor; and issue letters testamentary to Decedent’s brother

as successor executor of Decedent’s estate. The orphans’ court granted the

petition on June 22, 2009. On June 29, 2009, however, the orphans’ court



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vacated the June 22 order as requested by Stanishefski, as Attorney

Sieminski’s petition erroneously stated that Decedent’s siblings were the

only parties with an interest in Decedent’s estate, omitting that Stanishefski

was also a beneficiary under Decedent’s will. Stanishefski further asserted

that the orphans’ court erred by granting Attorney Sieminski’s petition, as it

provided for confirmation of the first and final account without first

conducting an audit by the court. On September 3, 2009, the orphans’ court

confirmed the audit of the first and final account submitted by Attorney

Sieminski as executor of Decedent’s estate.

      On March 5, 2010, Decedent’s siblings, as residuary legatees of

Decedent’s estate, filed a petition seeking the imposition of a constructive

trust (the “Petition”), naming Stanishefski and Attorney Sieminski as

respondents. The Petition alleged, in relevant part, that Stanishefski had a

confidential relationship with Decedent and, to the extent Decedent

consented to purchases and payments made by Stanishefski on his behalf,

he was mentally incompetent to do so. In their prayer for relief, Decedent’s

siblings requested that the orphans’ court do the following:

         A. To declare a constructive trust upon the property
            belonging to [] Decedent which was wrongfully
            transferred by [] Stanishefski to herself or for her
            benefit and

         B. To declare [] Stanishefski as a trustee of said funds
            and other property and to require her to account
            therefore [sic] and to return those funds and other




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            property aggregating $175,490.78[] to [] Decedent’s
            estate and

         C. To grant such further relief as the [c]ourt may deem
            just and fair.

Petition, 3/5/10, at 10.   Stanishefski filed an answer and new matter on

March 30, 2010, asserting that the siblings’ failure to challenge the first and

final account and audit resulted in a bar to the above-claims based upon the

running of the statute of limitations, res judicata, laches and an absence of

jurisdiction over the matter in the orphans’ court. Decedent’s siblings filed a

reply to the new matter on April 19, 2010.

      At a proceeding held on July 14, 2011 before the orphans’ court,

Attorney Sieminski and the Decedents’ siblings entered a stipulation, over

Stanishefski’s objection, to dismiss Attorney Sieminski as a respondent and

discharge Attorney Sieminski as executor as Decedent’s estate, replacing

him with Decedent’s brother as successor executor.          On July 26, 2011,

however, Decedent’s brother renounced his right to serve as executor of

Decedent’s estate, requesting that the orphans’ court instead issue letters of

administration d.b.n.c.t.a. to Petitioner.     Thereafter, on September 22,

2011, Decedent’s siblings discontinued the action commenced by the March

5, 2010 Petition, and in its place, Petitioner filed a nearly identical petition,

naming Stanishefski as respondent, on September 29, 2011.           Stanishefski

filed an answer on November 9, 2011.




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      The case ultimately came before the orphans’ court for a bench trial on

February 18, March 20, March 21, and April 29, 2014. Petitioner presented

the testimony of four employees of the home healthcare agencies that

worked with Decedent prior to his death, Attorney Sieminski and Decedent’s

brother, and called Stanishefski to testify as if on cross-examination.

Stanishefski presented testimony from three of Decedent’s friends – all of

whom saw and interacted with Decedent between thirty days and one-to-two

weeks of Decedent’s death. Stanishefski testified on her own behalf.

      On October 6, 2014, the orphans’ court entered an opinion and order

denying the request for the imposition of a constructive trust and reaching

the following conclusions of law:

            1. The testimony given by [] Stanishefski is found to
            be credible.

            2. [] Stanishefski has established a prima facie case
            for valid gifts with respect to the house, coins and
            cash, and [] Petitioner has failed to rebut the
            presumption of a valid gift by clear, precise and
            convincing evidence,

            3. There was no confidential relationship between
            [Decedent] and [] Stanishefski.

            4. Since no confidential relationship existed, the
            burden does not shift to [] Stanishefski to show that
            the gifts were not a result of undue influence.

Orphans’ Court Opinion, 10/6/14, at 4-5.




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      Petitioner filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal.      The orphans’ court

filed a supplemental opinion in response.

      On appeal, Petitioner presents the following issues for our review:

         1. Did a confidential relationship exist between []
            Decedent [] and [] Stanishefski?

         2. Did [] Stanishefski[] meet her burden of proving by
            clear and convincing evidence that the five transfers
            to her of [] Decedent’s property were valid, inter
            vivos gifts made by [] Decedent?

         3. Was [Stanishefski] subject to a duty as agent of []
            Decedent (1) to account for the coins purchased
            from Mint Fulfillment from January 1, 2006 until the
            death of [] Decedent on March 8, 2007 and (2) to
            justify the expenditures she made to a Discover
            credit card?

Petitioner’s Brief at 2-3.

      We begin by stating our standard of review:

                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 [o]rphans’ [c]ourt’s findings, our task
            is to ensure that the record is free from legal error
            and to determine if the [o]rphans’ [c]ourt’s findings
            are supported by competent and adequate evidence
            and are not predicated upon capricious disbelief of
            competent and credible evidence.



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In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014) (citation

omitted).

      In his first issue on appeal, Petitioner asserts that the orphans’ court

erred by finding that a confidential relationship did not exist between

Decedent and Stanishefski.          Petitioner’s Brief at 22.      We have found the

existence of a confidential relationship “when the circumstances make it

certain the parties do not deal on equal terms, but, on the one side there is

an overmastering influence, or, on the other, weakness, dependence or

trust, justifiably reposed.”    In re Estate of Nalaschi, 90 A.3d 8, 15 (Pa.

Super.   2014)   (citation     and    internal   quotation   marks    omitted).     “A

confidential relationship is marked by such a disparity in position that the

inferior party places complete trust in the superior party’s advice and seeks

no other counsel, so as to give rise to a potential abuse of power.”               Id.

(citation and internal quotation marks omitted).

      According to Petitioner, “the uncontroverted evidence” presented at

trial revealed that “Decedent was in a weakened physical and mental

condition,”   could   not    care    for   himself,   and    was    “dependent    upon

[Stanishefski] to provide the assistance necessary to his daily living and the

management of his financial affairs,” requiring a finding that a confidential

relationship between Decedent and Stanishefski existed. Petitioner’s Brief at

23. The record, however, does not support Petitioner’s contentions. There

is no question that Decedent became weaker physically as he neared the



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end of his life and needed someone to care for him; Stanishefski admitted

this in her testimony.   See N.T., 4/29/14, at 69.      However, while the

testimony of Decedent’s brother and the employees of the home healthcare

companies that worked with Decedent suggested that towards the end of his

life, Decedent suffered from a weakened intellect,3 the testimony presented

by Stanishefski painted Decedent as mentally competent until he died, 4 and




3
   For example, the registered nurse from Home Sweet Home Personal Care
testified to her observation that Decedent was “forgetful” during the initial
evaluation in 2005. N.T., 2/18/14, at 45. The registered nurse from
Diversified Nursing, Inc. testified to her perception in 2006 that Decedent
“was not able to make sound decisions regarding his safety,” exhibited
“episodes of confusion,” and was not oriented as to time. Id. at 56, 70, 71.
The personal care attendant from Home Sweet Home testified that during
the construction of the sunroom at his home, Decedent did not seem to
know what was going on. Id. at 94. Decedent’s brother testified that
Decedent began having memory lapses in 2000 and was incoherent during a
visit in 2006. N.T., 3/20-21/14, at 139-40.
4
   For example, Eugene Marshall (“Marshall”), Decedent’s general contractor
and longtime friend, testified that he saw Decedent often in the months
leading up to Decedent’s death and that Decedent “was still there” and acted
like himself. Id. at 224. Lawrence Kansky (“Kansky”), Decedent’s podiatrist
and close friend testified that he saw Decedent every thirty to sixty days
between 1997 and the date of Decedent’s death and that Decedent was
“sharp as a tack” and “always” alert, including the last time he saw him.
N.T., 4/29/14, at 4, 5, 8, 9. Kansky was a practicing attorney at the time of
his testimony, and testified that he never had a concern about Decedent’s
mental competence. Id. at 11-12. Frances Ponko (“Ponko”), a friend of
Stanishefski and Decedent, also described Decedent as “sharp,” and testified
that he was able to hold a normal conversation within two months of his
passing. Id. at 27-28. She visited with Decedent approximately a week or
two before he passed away and testified that she believed he was mentally
competent at that time. Id. at 31. Stanishefski likewise testified that she
never saw any change in Decedent’s mental acuity. Id. at 69.


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as stated above, the orphans’ court found the testimony presented by

Stanishefski to be credible.

      Furthermore,    although   Decedent    depended    in   large   part    on

Stanishefski for his survival, the testimony of Stanishefski and her witnesses

revealed that it was Decedent, not Stanishefski, who had the upper hand in

the relationship. Stanishefski testified that anything she did with respect to

Decedent’s care, his finances and his home were done because Decedent

told her to do so. She described him as “strict,” and testified, “[I]f he said

something, you went by it. He told me to do something this way, I would

just do it, that’s the way he wanted it.”     N.T., 4/29/14, at 52-53.       She

recounted one time when he was hospitalized that she had to leave work to

get him Italian ice because that was what he wanted.            Id. at 64-65.

Stanishefski testified that she never refused to do anything Decedent asked

of her, dating back to her teen years working for him at St. Mary’s. Id. at

65. She considered him to be like a father to her. Id.

      Marshall also described Decedent as a person who “was going to have

his way.”    N.T., 3/20-21/14, at 217.       He testified that he would not

challenge Decedent – “if that’s what he wanted, he wanted it.” Id. Marshall

observed Decedent towards the end of his life “still giving his orders,” and

that Decedent “controlled everything,” including Stanishefski. Id. at 225.

      Ponko similarly testified that “you did not tell [Decedent] what to do. …

[H]e had his own mind, set in his ways. He might have listened to you but



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when it came down to it, [Decedent] did what he wanted to do.            He was

stubborn. … Nobody talked him into anything.” N.T., 4/29/14, at 28.

      Based upon the testimony presented and the orphans’ court’s

credibility determinations, there is no support for the conclusion that

Stanishefski had “an overmastering influence” over Decedent or that

Decedent was the “weaker party” in the relationship. See In re Estate of

Nalaschi, 90 A.3d at 15. As such, we find no error or abuse of discretion in

its conclusion that there was no confidential relationship that existed

between Stanishefski and Decedent.

      Petitioner next asserts that Stanishefski failed to satisfy her burden of

establishing that certain transfers of money from Decedent to Stanishefski

were valid inter vivos gifts.5 Petitioner’s Brief at 25. Assuming she met this

burden, Petitioner asserts that he nonetheless sufficiently rebutted the

presumption of the validity of the gifts by clear and convincing evidence



5
   Petitioner also asserts that Stanishefski failed to establish that the transfer
of the house and coins from Decedent to Stanishefski were valid inter vivos
gifts, but he includes no argument in support of these contentions. With
respect to the house, he subsequently contradicts this claim by stating he
“did not question in the court below the conveyance by [] Decedent of his
residence to [Stanishefski] or his forgiveness of [Stanishefski’s] mortgage
indebtedness,” and that he “does not question” the transfer of the house to
Stanishefski from Decedent.         See Petitioner’s Brief at 25-26, 30-31.
Petitioner makes no further mention of the coins in his argument of this
issue. We therefore do not address either transfer herein. See Penn-Am.
Ins. Co. v. Peccadillos, Inc., 27 A.3d 259, 269 (Pa. Super. 2011) (en
banc) (finding an argument waived based upon the appellant’s failure to
include any “corresponding discussion in the body of [its] brief”); Pa.R.A.P.
2119(a).


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based upon the existence of a confidential relationship between Decedent

and Stanishefski. Id.

       “The elements required to establish a valid inter vivos gift are donative

intent and delivery.” In re Estate of Petro, 694 A.2d 627, 632 (Pa. Super.

1997) (citation omitted).     The burden initially is on the recipient of the

alleged gift to prove “by clear, precise, and convincing evidence” that it was

a valid inter vivos gift.   Id.     Establishing that the donor and donee had a

confidential relationship at the time of the gift would rebut the presumption

of validity of the gift.    Id. at 634.     Where a confidential relationship is

established, the burden shifts back to the donee “to prove that the gifts

were fair and free from suspicion.” Id.

       Petitioner alleges that Stanishefski failed to prove a valid inter vivos

gift for the following transfers:

      $50,000 check made out to “cash” from Decedent deposited into
       Stanishefski’s account on or about September 15, 2006;

      $30,000 check made out to “cash” from Decedent deposited into
       Stanishefski’s account on or about October 3, 2006;

      $20,000 of a $30,000 check made out to Decedent from his Wachovia
       Securities account deposited into Stanishefski’s account on November
       16, 2006;

      $30,000 check made out to Decedent from his Wachovia Securities
       account deposited into Stanishefski’s account on March 1, 2007;




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       A check payable from Decedent, signed by Stanishefski, to “Just
        Windows and More” for a renovation to the house.6

See Petitioner’s Brief at 28-29.

        The record reflects that Stanishefski sufficiently proved that the above

transfers were valid inter vivos gifts from Decedent.     Stanishefski testified

that she made all of the above transfers at Decedent’s direction. See N.T.,

3/20-21/14, at 35, 41, 67, 75; N.T., 4/29/14, at 67-68.           According to

Stanishefski, they did not usually talk about money, and when he gave her

the checks, he told her to put them into her account. N.T., 4/29/14, at 67.

It was Stanishefski’s understanding that he was giving the money to her as

a gift. Id. Decedent told Stanishefski he did not want the money left in his

account and “he wanted to be sure all of the bills were paid.” N.T., 3/20-

21/14, at 35. Stanishefski indicated that the checks made out to “cash” (for

$50,000 and $30,000, respectively) went to the payment of bills for various

home improvement projects.         Id.    She made many of these expenditures

during Decedent’s lifetime at his direction. See id. at 220, 222. Although

the house technically belonged to Stanishefski at the time, she testified that

she always considered it to be their shared home. N.T., 4/29/14, at 77-78.

The record reflects that Decedent was the one who wanted the sunroom that

was added onto the house and that Stanishefski “went along [with] him.”

Id. at 77; see also id. at 28-29; N.T., 3/20-21/14, at 221-22.


6
  The record reflects that Decedent wrote this check after he transferred the
house to Stanishefski. See N.T., 3/20-21/14, at 12.


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      Decedent also stated on more than one occasion that he did not want

the money to be in his accounts because he did not want his family to get

the money – “[h]e said he gave them what he thought they deserved and

that was it.”   Id. at 68.   As we previously stated, the record reflects that

Decedent’s siblings stood to inherit the residue of his estate, which would

have included money left in his personal accounts. He took the money out

of these accounts and gave it to Stanishefski, instructing her to put it into

her account because he did not want his family to get the money when he

passed away, a clear indication that he wanted Stanishefski to have the

money instead.

      Petitioner asserts that the Decedent’s signatures on the two checks for

“cash” were “glaringly inconsistent” with his signature on the do not

resuscitate order he signed on November 10, 2006, Petitioner’s Brief at 29,

but   he   presented   no    evidence    at   trial   or   otherwise   to   contradict

Stanishefski’s testimony that Decedent signed those checks.                 See N.T.,

3/20-21/14, at 32-33. We have no information regarding the circumstances

surrounding Decedent’s signature of the do not resuscitate order – where he

was, what he was doing at the time, or how he was feeling that day.

      Petitioner further questions the strength of Decedent’s signatures on

all of the checks, as the evidence of record revealed that Decedent was

extremely weak during the final months of his life. Petitioner’s Brief at 29.

Stanishefski testified, however, that Decedent pre-signed checks in blank



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and left them for her to fill in at his direction, and there is no evidence that

he did not do so with respect to the two checks made out to “cash.” N.T.,

2/18/14, at 144-45. With respect to the checks Decedent endorsed from his

Wachovia securities account, Petitioner is correct that the personal care

attendant from Home Sweet Home testified that because of Decedent’s

weakened condition, she did not believe he could have signed his name to a

check towards the end of his life. N.T., 2/18/14, at 96-97. However, there

was also testimony in contradiction.      Ponko, for example, testified that

Decedent held and blessed her three-month-old grandchild approximately

two months before Decedent passed away.             N.T., 4/29/14, at 28-29.

Specifically regarding his ability to write, Kansky testified that although he

did not see Decedent writing during his final days, he observed “letters …

and a pen … and a pad” next to the chair in which the Decedent always sat,

and it appeared to Kansky that Decedent “was actively writing[.]” Id. at 16.

Moreover, Stanishefski consistently testified that she never did anything with

respect to Decedent’s finances unless he told her to and that she always

followed the Decedent’s instructions. See N.T., 2/18/14, at 135; N.T., 3/20-

21/14, at 34-35, 41, 60, 67, 75. She further testified that Decedent always

reviewed his checkbook and his financial statements – there were no

financial transactions made of which he was unaware. N.T., 3/20-21/14, at

62. Stanishefski testified and her witnesses agreed – “he was the boss” and




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“controlled everything.”    N.T., 2/18/14, at 145; N.T., 3/20-21/14, at 225;

N.T., 4/29/14, at 28, 53.

      The orphans’ court found the testimony presented by Stanishefski

credible, and this testimony supports a finding that Decedent delivered the

above-listed money with donative intent. See In re Estate of Petro, 694

A.2d at 632. The orphans’ court’s findings are supported by competent

evidence, are free from legal error, and are not based upon a “capricious

disbelief of competent and credible evidence.” In re Estate of Bechtel, 92

A.3d at 837. As we have already addressed the question of a confidential

relationship between Stanishefski and Decedent, concluding that the record

supported the orphans’ court finding that none existed, no relief is due.

      Lastly, Petitioner asserts that Stanishefski had a “duty as agent of []

Decedent” to account for coins purchased at Decedent’s request and

payments made to a Discover card. Petitioner’s Brief at 31-33. Petitioner

asserts that Stanishefski “acted as agent for [] Decedent” in purchasing

approximately $90,000 worth of coins in the last year of his life and was

thus required to account to Decedent’s estate for the coins.7 Id. at 31-32.

Petitioner further asserts that Stanishefski failed to prove that Decedent was


7
    The record reflects that in the year leading up to his death, either
Decedent himself or Stanishefski, at Decedent’s direction, made large
purchases of coins, which it is undisputed Decedent collected. N.T., 3/20-
21/14, at 164, 185-89; N.T., 4/29/14, at 59-60, 74. Stanishefski and Ponko
both testified that Decedent enjoyed giving coins (and jewelry) away to his
close friends and family members and that he did in fact give away coins
that he purchased. N.T., 4/29/14, at 30-31, 59-60.


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the holder of a Discover credit card, and thus failed to prove that the twelve

checks prepared by her on Decedent’s behalf, paid to Discover, were for

debts owed by Decedent.8 Id. at 32.

      In support of this argument, Petitioner relies upon section 5610 of the

Probate, Estates and Fiduciaries Code governing the requirement that a

person appointed as power of attorney “file an account of his administration

whenever directed to do so by the court and may file an account at any

other time.”   20 Pa.C.S.A. § 5610.     Petitioner further cites to case law

involving a power of attorney and executors of an estate, respectively,

breaching the duty to justify disbursements made by them. See Petitioner’s

Brief at 33 (citing In re Strickler’s Estate, 47 A.2d 134 (Pa. 1946); In re

Estate of Bechtel, 92 A.3d 833).        The record reflects, however, that

Attorney Sieminski, not Stanishefski, was appointed by Decedent as his

power of attorney and executor of his will.     Stanishefski was not issuing



8
  We observe that although Attorney Sieminski testified that he was unable
to locate a Discover card in Decedent’s name, Stanishefski presented
evidence that Decedent did in fact hold a Discover credit card, and
Stanishefski testified that the checks written from Decedent’s bank account
to Discover were for his credit card bills. See Respondent’s Exhibits 4-6;
N.T., 3/20/21/14, at 116, 120-22; N.T., 4/29/14, at 75-76. Petitioner
contends that some of the credit card statements bear a different account
number than are listed in the memo line on the checks to Discover for
payment. Petitioner’s Brief at 32. Petitioner did not advance this claim
before the orphans’ court. Furthermore, the credit card number does not
appear on the Discover statements included as exhibits in the certified
record on appeal. We therefore have no ability to address this contention.
See 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.”).


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checks or making purchases as part of her legal obligation to Decedent, but

did so, according to the orphans’ court’s credibility determinations, because

Decedent asked her to.     Apart from his bald statement that Stanishefski

acted as Decedent’s agent, Petitioner includes no argument equating

Stanishefski’s role with that of a power of attorney or provides any basis for

this Court to conclude that section 5610 or the foregoing case law governed

her actions.

      Moreover, the evidence as it exists in this action indicates that there

were no coins in Decedent’s estate. The audit of the first and final account,

confirmed absolutely by the orphans’ court, does not include any coins. The

only tangible personal property distributed accounted for therein is $1500 in

“household furniture and personal affects,” and Decedent’s vehicle, worth

$2,675. Audit, 9/4/09, ¶ 12. Petitioner did not appeal this order. Pursuant

to section 3358 of the Probate, Estates and Fiduciaries Code, “No decree

entered pursuant to this code shall be subject to collateral attack on account

of any irregularity if the court which entered it had jurisdiction to do so.” 20

Pa.C.S.A. § 3358.    Thus, to the extent Stanishefski was, at the time of

Decedent’s death, in possession of coins that Decedent had owned and

purchased prior thereto, the only challenge available to Petitioner would be

to argue that the coins were an invalid inter vivos gift.            As stated

hereinabove, however, Petitioner waived this claim on appeal by failing to

include any argument in support thereof. See supra, n.5.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/2015




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