J-A24013-16

                                  2017 PA Super 130

MONICA GAVIN AND LUCIA CAREZANI,                  IN THE SUPERIOR COURT OF
EXECUTRIX OF THE ESTATE OF JAMES                        PENNSYLVANIA
GAVIN, DECEASED

                            Appellant

                       v.

ELAINE LOEFFELBEIN

                                                      No. 341 EDA 2016


               Appeal from the Judgment Entered March 11, 2016
                In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-914


BEFORE: BOWES, OTT AND SOLANO, JJ.

OPINION BY BOWES, J.:                                  FILED MAY 01, 2017

       Monica Gavin, individually, and Lucia Carezani, in her capacity as

executrix of the estate of James Gavin, raise various challenges to the

proceedings that culminated in a jury award in favor of Appellee Elaine

Loeffelbein. We affirm.

       On March 25, 2014, Monica1 instituted this action pro se against

Elaine, presenting the following allegations. Monica was married to James

Gavin, who was Elaine’s brother. On May 28, 2010, Monica filed an action in

divorce from James, but both Monica and James continued to reside at the

marital residence with their two children, Edric and Aubrey.     Monica and
____________________________________________


1
   We have utilized first names in this opinion to facilitate an easier
understanding of the narrative.
J-A24013-16


James lived separate and apart within that abode.    On May 24, 2012, the

Honorable Edward D. Reibman of the Lehigh County Court of Common Pleas

appointed an emergency guardian, Laurie Dart Schnaufer, for James.       Ms.

Schnaufer placed James in an assisted living facility in Allentown while

Monica remained in the marital home with the children.           Without the

knowledge of Monica or Ms. Schnaufer, Elaine and James went to the marital

residence on July 9, 2012. Edric, who was seventeen years old, and Aubrey,

who was fourteen, allowed Elaine and James inside.       Monica claimed that,

even though James co-owned the residence, the entry was unauthorized

because James was not capable of giving consent to it.

     The complaint also averred that James and Elaine, with the assistance

of Edric and Aubrey, removed a collection of rare books and autographs with

an estimated value of $515,000 and took it to a storage locker over which

Elaine had control. Monica admitted in the complaint that the collection of

books and autographs belonged to James.      Complaint, 3/25/14, at ¶ 17.

She reported that she had inventoried eighty percent of that collection

before James and Elaine removed it from the marital residence.        Monica

contended that the collection was stolen from the marital home since James

did not have the capacity to consent to the transfer of control over the

collection to Elaine. On August 20, 2012, Judge Reibman appointed Elaine

permanent guardian of James.




                                   -2-
J-A24013-16


      Monica also indicated that the following occurred.           The court

overseeing the divorce proceeding accorded Monica the right to inventory

James’ collection of rare books and autographs. The boxes containing the

collection were taken from the storage facility to the office of Elaine’s

counsel, where Monica catalogued the items in the boxes in a room by

herself.    In her pro se complaint, Monica averred that 296 items with an

estimated value of $236,161 were missing from the boxes brought to their

office.    Monica maintained that she lost $236,000 in marital assets as a

result of Elaine’s actions and requested compensatory and punitive damages

against Elaine.

      Elaine filed preliminary objections to the complaint arguing that the

complaint was insufficient to support a claim for relief, including a punitive

damages award. She observed that Monica had failed to specify the cause

of action that she purported to present and continued that Monica failed to

present any specifics to support her position that Elaine had been negligent.

      Monica obtained an attorney, who thereafter filed an amended

complaint, wherein the following supplemental averments were presented.

The collection included rare books, autographs, antiques, and memorabilia

valued at approximately $515,000, and Monica had partially inventoried the

collection before James and Elaine removed it from the marital home.

Monica claimed that she owned the collectibles and that Elaine had stolen,

misplaced, or was otherwise accountable for the collection after its removal.


                                    -3-
J-A24013-16


Monica continued that items were missing from the collection after it was

taken from the marital residence and again claimed that those articles had

an estimated value of $236,000.

      The   amended complaint raised counts        in   trespass,   conversion,

negligence, and punitive damages. It specified that Elaine purportedly was

negligent because she failed to 1) obtain lawful consent to remove James’

collection on July 9, 2012; 2) properly store and safeguard the collection

after removing it; 3) inventory and oversee the collection; 4) insure the

collection against loss; 5) take reasonable steps to prevent the collectibles

from being stolen, lost, or misplaced; and 6) return the collection when

Monica demanded it be placed in her custody.

      As damages, Monica claimed the loss of collectibles, which were

enumerated in an exhibit to the amended complaint, with a value of

$236,000.     She requested punitive damages by averring that Elaine’s

conduct was extreme and outrageous in that Elaine took “advantage of a

legally incompetent person (i.e. James Gavin) by tricking her way into

[Monica’s] home, without lawful consent, and removing irreplaceable

collectibles[.]” Amended Complaint, 5/22/14, at ¶ 27.

      Elaine responded to the amended complaint with another set of

preliminary objections raising the contentions that the pleadings were legally

insufficient to support the outlined causes of action. She also averred that

the complaint failed to join a necessary party, James Gavin.        Monica then


                                    -4-
J-A24013-16


filed a second amended complaint, which added as a plaintiff, “James Gavin,

an incapacitated person, by Susan Maurer, guardian.” Second Amended

Complaint, 6/2/14, at 1, 2.    Monica indicated that on November 15, 2013,

Elaine had been replaced as James’ guardian by Ms. Maurer.

      Ms. Maurer filed preliminary objections to the second amended

complaint maintaining that James lacked the capacity to be brought into the

suit and that James and Monica had an agreement in place in the divorce

action for an alternative resolution involving the same collection. Elaine also

filed preliminary objections to the second amended complaint averring that

the trespass count was legally insufficient since it did not aver injury to the

real estate and that there were insufficient facts to support an award for

punitive damages. Both of these preliminary objections were overruled, and

Elaine filed a responsive pleading to the second amended complaint.

      This civil action was assigned to the same judge who had presided

over James’ guardianship proceedings. Discovery was conducted, and Elaine

filed a motion for summary judgment, which was denied.        On January 24,

2015, James died, and the caption was amended to reflect that Lucia

Carezani, in her capacity as executrix of the estate of James Gavin, was

substituted as plaintiff. The matter proceeded to a jury trial that occurred

from June 9-12, 2015.

      The following evidence was adduced at trial. Monica married James in

1987, producing two children. In 1997, they moved to the marital residence


                                     -5-
J-A24013-16


on Jordan Road in Lehigh County.               Monica was employed as a physician

while James, who was well-educated, served as a stay-at-home father.

After Monica filed for divorce in May, 2010, James desired to remain close to

his children, as he had been their primary caregiver. Even though he and

Monica occupied separate floors, James continued to live at the marital

home, and the property remained in their joint names. As James believed

that Monica was alienating his children from him, the living situation became

stressful for James, and he began to display signs of dementia.

       James had a collection of memorabilia, which he kept in boxes in the

basement, and he desired to bestow that collection on his children. By April

2012, James became concerned that Monica would dissipate the collection,

and sought to protect it.          James asked his neighbor, David Greene, to

remove part of the collection from the Jordan Road residence. Boxes from

the collection were taken to a storage facility rented on James' behalf.

       On May 16, 2012, a petition was filed for appointment of an

emergency guardian, pursuant to 20 Pa.C.S. § 5513,2 over James' person

and estate. Following a hearing, the trial judge found that James' ability to

receive and evaluate information effectively and communicate reasonable

decisions was impaired.         That jurist entered an order on May 24, 2012,

____________________________________________


2
  We outline the provisions of this statute, infra, in connection with our
analysis of the merits of Appellants’ first issue as its language is pertinent
therein.



                                           -6-
J-A24013-16


appointing Ms. Schnaufer as an emergency guardian of James' person and

estate.3 The order directed the guardian to remove James from the Jordan

Road residence and admit him to an independent living/personal care

facility, which she did the following day. Ms. Schnaufer also was accorded

the power to determine, assemble, and administer James’ property.

       In July 2012, Elaine traveled to Pennsylvania to visit James, and found

him upset and anxious.           He told Elaine that he wanted to remove the

remaining boxes of his collection from Jordan Road and place them in the

storage facility so that Monica would not destroy or dissipate it. James had

directed Ms. Schnaufer to have the boxes removed, but she had failed to

abide by his request, and he was dissatisfied with her. James’ neurologist

told Elaine that James should avoid stress as it would worsen his condition.

____________________________________________


3
  The May 24, 2012 order appointing an emergency guardian of the person
and the estate of James provided that it was to “continue until conclusion of
a full hearing on a petition pursuant to § 5511 of the Probate Estates and
Fiduciaries Code, 20 Pa.C.S.A. § 5511, which shall be filed by the Petitioner
within 30 days of the date of this Order.” Plaintiff’s Exhibit 1; Order of Court
entered at 2012-0794, 5/24/12, at 2. We note that, “An emergency order
appointing an emergency guardian of the estate shall not exceed 30 days.”
20 Pa.C.S. § 5513. Thus, the May 24, 2012 order should not have provided
that it expired when a hearing on the petition under § 5511 was filed. See
20 Pa.C.S. § 5511 (“The court, upon petition and hearing and upon the
presentation of clear and convincing evidence, may find a person domiciled
in the Commonwealth to be incapacitated and appoint a guardian or
guardians of his person or estate.”). The record does not indicate when the
§ 5511 petition was actually filed, but the decree declaring James to be an
incapacitated person is contained in the record, and was dated August 21,
2012. Plaintiff’s Exhibit 3; Decree entered at 2012-0794, 8/21/12, at 1
(“James Gavin is declared to be an incapacitated person[.]”).



                                           -7-
J-A24013-16


      On July 9, 2012, after James spoke with Elaine about his distress over

his memorabilia remaining at Jordan Road, Elaine unsuccessfully attempted

to reach Ms. Schnaufer. Elaine was able to contact James’ attorney, Gerald

Barr, Esquire, who informed her that James had the right to remove his

personal things from the Jordan Road residence, and that she could go to

that residence with James for that purpose. After receiving this information

from the lawyer, Elaine and James went to the Jordan Road residence, and

James’ children admitted them into the house. Next, James, Elaine, and the

two children took between eight and ten boxes containing the rest of the

memorabilia collection and placed those boxes in the storage facility.

      On August 20, 2012, a hearing for a permanent guardianship was held

and James was found to be incapacitated and in need of plenary

guardianship services. The court appointed Elaine guardian of James’ person

and estate. Later, the boxes taken by Elaine and James were delivered to

Mr. Barr’s office for Monica to inventory. Monica was left alone in the room

with the boxes when she inspected them. Monica, who represented that she

had inventoried about eighty percent of the collection before it was taken,

claimed that items worth $236,000 were missing from the boxes.

      After Appellants presented their evidence, the trial court granted

Elaine’s request for a nonsuit as to the trespass and punitive damages

counts set forth in the complaint.   The jury returned a verdict in favor of

Elaine on the conversion and negligence counts. This appeal followed denial


                                     -8-
J-A24013-16


of post-trial motions and entry of judgment on the verdict. Appellants raise

these positions:

      A. Did the trial court's instructions to the jury contain substantial
      errors so that relief must be granted?

             1. Did the court err by charging the jury to
             determine whether James Gavin consented to the
             taking of marital property where he had been
             appointed a temporary guardian with authority over
             all his property?

             2. Did the court err by failing to charge the jury that
             mistake of law and mistake of fact are not defenses
             to conversion?

             3. Did the court err by failing to charge the jury that
             defendant had a duty of reasonable care over
             collectibles she voluntarily took control over?

             4. Did the court err by charging the jury spoliation
             against Appellants where there was no bad faith and
             the items allegedly disposed of had no evidentiary
             value?

      B. Did the court err by granting a nonsuit as to trespass where
      James Gavin could not lawfully consent to defendant entering
      the Gavin residence and taking the collectibles?

      C. Did the court err by granting a nonsuit as to punitive damages
      where Appellant[s] proved an intentional tort and evidence was
      offered to support the conclusion that defendant acted in total
      disregard for the rights of others?

Appellants’ brief at 6.

      Appellants’ first argument is premised upon the position that James,

being incapacitated on July 9, 2012, was incapable of giving consent to

Elaine’s   entry   into   the   marital   home   and   removal   of   his   personal

memorabilia collection from that residence. Based upon this premise, they

                                          -9-
J-A24013-16


claim that the trial court erroneously instructed the jury that it could

determine whether James had consented to Elaine’s actions on July 9, 2012.

Appellant’s brief at 16.

      Our standard of review is as follows:

            Under Pennsylvania law, our standard of review when
      considering the adequacy of jury instructions in a civil case is to
      “determine whether the trial court committed a clear abuse of
      discretion or error of law controlling the outcome of the case.”
      Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). It is only
      when “the charge as a whole is inadequate or not clear or has a
      tendency to mislead or confuse rather than clarify a material
      issue” that error in a charge will be found to be a sufficient basis
      for the award of a new trial. Id. at 540. . . .

Lewis v. CRC Indus., Inc., 7 A.3d 841, 844 (Pa.Super. 2010).

      In the present case, the trial court outlined various sections of the

guardianship law to the jury, including the definition of an incapacitated

person and excerpts of the statute outlining the procedure for appointment

of an emergency guardian. The trial court also read portions of the May 24,

2012 order appointing an emergency guardian for James and then

summarized what occurred during the guardianship proceeding.          The court

thereafter advised the jury:

            With respect to the emergency guardian, the emergency
      guardian of the person was limited to placement, and to make
      medical decisions. And the emergency guardian of the Estate
      was for the powers that I mentioned, in terms of – including
      other things – assembling Mr. Gavin's personal property.

            The power to the emergency guardian of the person is not
      exclusive to the guardian; that is to say, that Mr. Gavin was not
      precluded from expressing his wishes, and making some
      decisions regarding his personal property.

                                     - 10 -
J-A24013-16



N.T. Trial (Vol. II), 6/10/15, at 969.

      Although their argument is prolix, Appellants’ position boils down to

one essential assertion: James did not have the legal ability to consent to

Elaine’s entry into his home or to consent to her removal of his memorabilia

collection because an emergency guardian had been appointed for him on

May 25, 2012. Concomitantly, Appellants maintain that the trial court was

wrong when it instructed the jury that James was not precluded from

expressing his wishes and making some decisions about his personalty.

They also assert error occurred when the court told the jury it could decide

whether James had consented to Elaine’s July 9, 2012 activities.

      Appellants point out that the May 25, 2012 order accorded Ms.

Schnaufer the power to “ascertain, assemble and administer all of the

property owned by James Gavin.” Plaintiff’s Exhibit 1 (Order Appointing

Emergency Guardians, 5/24/12, at 2).          They continue that this language

meant that the guardian of the estate had sole management and control

over all of James’ property “to the exclusion of [James] Gavin.” Appellants’

brief at 20. Appellants thus argue that the emergency guardianship order

abrogated James’ legal ability to consent to Elaine’s entry into his home and

to her assumption of control over his memorabilia collection, and that they

are entitled to judgment as a matter of law on their trespass and conversion

causes of action.




                                     - 11 -
J-A24013-16


      Title 20 of the Pennsylvania Consolidated Statutes, known as the

Probate, Estates, and Fiduciaries Code (“PEF Code”), governs guardianship

proceedings in this Commonwealth beginning at § 5501.            The PEF Code

defines incapacity, stating that an 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 manage his financial resources or to

meet essential requirements for his physical health and safety.” (emphasis

added). Also implicated herein is § 5513 of the PEF Code, which pertains to

the appointment of an emergency guardian:

             Notwithstanding the provisions of section 5511 (relating to
      petition and hearing; independent evaluation), the court, upon
      petition and a hearing at which clear and convincing evidence is
      shown, may appoint an emergency guardian or guardians of the
      person or estate of a person alleged to be incapacitated, when it
      appears that the person lacks capacity, is in need of a guardian
      and a failure to make such appointment will result in irreparable
      harm to the person or estate of the alleged incapacitated person.
      The provisions of section 5511, including those relating to
      counsel, shall be applicable to such proceedings, except when
      the court has found that it is not feasible in the circumstances.
      An emergency guardian so appointed for the person or estate of
      an alleged incapacitated person shall only have and be subject to
      such powers, duties and liabilities and serve for such time as the
      court shall direct in its decree. An emergency order appointing
      an emergency guardian of the person may be in effect for up to
      72 hours. If the emergency continues, then the emergency
      order may be extended for no more than 20 days from the
      expiration of the initial emergency order. After expiration of the
      emergency order or any extension, a full guardianship
      proceeding must be initiated pursuant to section 5511. The
      court may also appoint an emergency guardian of the person
      pursuant to this section for an alleged incapacitated person who
      is present in this Commonwealth but is domiciled outside of this

                                       - 12 -
J-A24013-16


      Commonwealth, regardless of whether the alleged incapacitated
      person has property in this Commonwealth. An emergency
      order appointing an emergency guardian of the estate
      shall not exceed 30 days. After 30 days, a full guardianship
      proceeding must be initiated pursuant to section 5511.

20 Pa.C.S. § 5513 (emphasis added).

      Initially, we observe that as of July 9, 2012, when the actions in

question occurred, Ms. Schnaufer’s appointment had expired and James no

longer was operating under the appointment of an emergency guardian. The

order appointing an emergency guardian was executed on May 24, 2012;

under the express terms of § 5513, it expired on June 23, 2012.             The

permanent guardian was not appointed until August 21, 2012. Thus, on July

9, 2012, when James entered his home and removed his collection, he was

sui juris. Appellants’ present position fails for this reason alone.

      Nevertheless, since this was a crucial issue at trial, we will address the

question of whether the instruction in question was erroneous. We conclude

that the May 24, 2012 order appointing an emergency guardian under §

5513 did not strip James of complete input into the administration of his

personal property and of the ability to consent to Elaine’s entry into his

Jordan Road residence and removal of the remaining boxes of his collectibles

to the storage facility.

      The May 24, 2012 order indicated that James’ internist had determined

that he was “significantly impaired” in his ability to receive and evaluate

information and to communicate reasonable decisions.          Thus, James was


                                     - 13 -
J-A24013-16


found to be impaired rather than incapacitated. As outlined, supra, a totally

incapacitated person, as defined in pertinent part in § 5501 of the PEF Code,

means someone whose ability to receive and evaluate information effectively

and communicate decisions in any way is impaired to such a significant

extent that he is unable to manage his financial resources. James correctly

knew that he owned a financial resource, a collection with significant

monetary value, and effectively communicated his desires about that

financial resource.   The comments and concerns expressed by James

establish that he was not totally incapacitated, as defined by § 5501.

      In fact, James clearly conveyed to his neighbor and to Elaine his

concern with Monica and her actions with respect to their children. Likewise,

he cogently articulated that he wanted his children to have his memorabilia

collection and that he feared that Monica might secret it from them. James

correctly informed Elaine that he had repeatedly asked Ms. Schnaufer, his

emergency guardian of the estate, to gather his collection and remove it

from his marital residence, but Ms. Schnaufer had not responded.

      Additionally, the May 24, 2012 order in question was premised upon a

finding that James allegedly appeared to be incapacitated.        He was not

declared legally incapacitated until a hearing was held under 20 Pa.C.S. §

5511 (a). (“The court, upon petition and hearing and upon the presentation

of clear and convincing evidence, may find a person domiciled in the

Commonwealth to be incapacitated and appoint a guardian or guardians of


                                    - 14 -
J-A24013-16


his person or estate.”). Until the clear and convincing proof was presented

to the trial court and it rendered a decision that James was incapacitated, he

was presumptively competent.     See Estate of Haertsch, 609 A.2d 1384,

1386 (Pa.Super. 1992) (emphasis and citation omitted) (“Mental capacity

and competency are to be presumed and before any person shall be

deprived of the right to handle his or her own property and manage his or

her affairs there must be clear and convincing proof of mental incompetency

and such proof must be preponderating.”).     A finding of incapacity is only

prospective in effect.   In re Hastings' Estate, 387 A.2d 865, 868 (Pa.

1978) (“A determination of incompetence is prospective only.”).

      Finally, in the present case, James was conveying his desire to take

actions to ensure that his valuable collection of memorabilia would be

transferred to his children. He intended to gift his personal effects to them.

We find that James’ directions to Elaine indicated that he had the capacity to

consent to entry into his home and removal of his personal property.

      As our Supreme Court articulated in In re Null's Estate, 153 A. 137,

139 (Pa. 1930), “Capacity relates to soundness of mind, or, in other words,

a mind that has full and intelligent knowledge of an act engaged in, an

intelligent perception and understanding of the dispositions made of

property, and the persons and objects one desires shall be the recipients of

one's bounty.”   Herein, James conveyed an awareness of: who he was,

where he lived, his co-ownership of the Jordan Road property, who his


                                    - 15 -
J-A24013-16


children were, that he was estranged from his wife, his ownership of a

valuable collection of memorabilia, that he desired his children to receive it,

and that he had been appointed a guardian.         In light of his estrangement

from Monica, James’ children were the natural objects of his bounty.           We

thus conclude that Appellants’ own proof demonstrated that James had the

capacity to consent to entry into his house and to direct that the collection

be removed so he could protect it for his children.

        Finally, and most significantly, while the emergency guardian of the

estate, Ms. Schnaufer, was accorded control over the administration of

James’ property, that appointment did not deprive James completely of any

involvement with its disposition. Simply put, we reject Appellants’ position

that the appointment of an emergency guardian stripped James of all control

over his property and abrogated his right to any input as to its disposition.

As we noted in In re Estate of Rosengarten, 871 A.2d 1249, 1255

(Pa.Super. 2005) (emphasis added),

        the intentions of the incapacitated person are to be honored to
        the fullest extent possible. This concept is best illustrated in
        Estate of Haertsch, 437 Pa.Super. 187, 649 A.2d 719, 721
        (1994): “It is clear that throughout the carefully drawn legislation
        [,being the guardianship provisions of the PEF Code,] it was
        intended that the incapacitated person be permitted the
        fullest degree of freedom and control over his/her physical
        and financial affairs.”

        This particular precept is outlined in the following provision of the PEF

Code:




                                      - 16 -
J-A24013-16


        Recognizing that every individual has unique needs and differing
      abilities, it is the purpose of this chapter to promote the general
      welfare of all citizens by establishing a system which permits
      incapacitated persons to participate as fully as possible in all
      decisions which affect them, which assists these persons in
      meeting the essential requirements for their physical health and
      safety, protecting their rights, managing their financial resources and
      developing or regaining their abilities to the maximum extent possible
      and which accomplishes these objectives through the use of the least
      restrictive alternative; and recognizing further that when guardianship
      services are necessary, it is important to facilitate the finding of
      suitable individuals or entities willing to serve as guardians.

20 Pa.C.S. § 5502 (emphasis added).

      The trial court in the present matter informed the jury that the fact

that James had an emergency guardian of the estate due to an allegation

that he was impaired did not preclude James from expressing his wishes and

making some decisions about his property. This instruction was an accurate

statement of the law, especially since James was not declared incapacitated

at the time in question and in light of the evidence adduced at trial.     The

instruction, as a correct statement of the law under the circumstances, is

thus not grounds for a new trial.

      Appellants’ second complaint is that the trial court’s charge as to the

elements of conversion was incorrect.         Conversion is “the deprivation of

another's right of property in, or use or possession of, chattel, or other

interference therewith, without the owner's consent and without lawful

justification.” PTSI, Inc. v. Haley, 71 A.3d 304, 314 (Pa.Super. 2013)

(citations omitted). The trial court told the jury the following:




                                     - 17 -
J-A24013-16


          Now I'm going to define conversion. Conversion essentially
      requires proof that the Defendant interfered without lawful
      justification, with a Plaintiff's right of property in a particular
      asset.

          Showing that the Defendant acted without lawful justification
      is an element of the prima facie case of conversion on which the
      Plaintiff bears the burden of proof. Lawful justification is not an
      affirmative defense.

          Where one lawfully comes into possession of a chattel, a
      conversion occurs under the Pennsylvania Law, if a demand for
      the chattel is made by the rightful owner and the other party
      refuses to deliver.

N.T. Trial (Vol. II), 6/10/15, at 971.

      Appellants’ position as to the conversion charge is that the trial court

“erred by failing to charge the jury that mistake of law and mistake of fact

are not defenses to conversion.”     Appellants’ brief at 26.   In Hatwood v.

Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1235 (Pa.Super.

2012), we articulated the settled principle that “only when the charge as a

whole is inadequate or not clear or has a tendency to mislead or confuse

rather than clarify a material issue that error in a charge will be found to be

a sufficient basis for the award of a new trial.”      We also repeated the

ensconced precept that “a trial judge has wide latitude in his or her choice of

language when charging a jury, provided always that the court fully and

adequately conveys the applicable law.” Id. Simply put, the trial court was

not required to instruct the jury in accordance with Appellants’ proposed

point for charge and, so long as the proper legal concepts were conveyed to

the jury, a new trial will not be awarded.



                                     - 18 -
J-A24013-16



      Herein, the trial court set forth the elements of a cause of action in

conversion, including that conversion occurs when property is taken without

legal justification. The trial court’s repeated admonition that Elaine’s taking

of the property had to be legally justified adequately expressed the

concept that “mistake of law” and “mistake of fact” are not defenses to

conversion.   The conversion charge, as a whole, was neither unclear nor

inadequate, and it did not have a tendency to mislead or confuse the jury

regarding the applicable law. Hence, we decline to grant Appellants a new

trial based on the conversion instruction disseminated to the jury.

      Appellants’ third complaint also concerns jury instructions; they

maintain that the court erred when it did not “charge the jury that defendant

had a duty of reasonable care over collectibles she voluntarily took control

over.” Appellants’ brief at 30 (emphasis omitted). The trial court gave the

following instruction as to negligence:

            Now I'm going to define negligence for you. In this case,
      you must decide whether Elaine Loeffelbein was negligent. A
      person must act in a reasonably careful manner to avoid
      harming others. The care required varies according to the
      circumstances, and the degree of danger at a particular time.

            You must decide how a reasonably careful person would
      act under the circumstances established by the evidence in this
      ease. A person who does something reasonably – I'm sorry. A
      person who does something a reasonably careful person would
      not do under the circumstances, is negligent. A person also can
      be negligent by failing to act. A person who fails to do something
      a reasonably careful person would do under the circumstances is
      negligent.

N.T. Trial (Vol. II), 6/10/15, at 970-71.


                                     - 19 -
J-A24013-16



      Appellants argue that the court should have specifically mentioned that

Elaine had a duty to reasonably care for the collection. This entire case was

solely about items purportedly missing from the recovered boxes containing

the collection. In light of the facts and Appellants’ position at trial, the jury

certainly was aware that the averments relating to Elaine’s negligence

concerned her actions that allegedly resulted in lost artifacts of memorabilia.

We decline to award a new trial based upon the trial court’s failure to include

the wording that Elaine’s duty of care related to the “collectibles she

voluntarily took control over.”

      Appellants’ fourth contention is that the court improperly charged the

jury as to spoliation. The following facts are pertinent. Monica claimed that

she inventoried about eighty percent of the boxed collection from May 2012

through July 9, 2012. As noted, Monica performed a second inventory alone

in Attorney Barr’s office in May 2013.        Monica averred that her second

inventory revealed that 296 articles were gone, and that they were worth

$236,000.     In support of her position, Monica presented a spreadsheet

inventory purportedly created prior to July 9, 2012, and pictures of some of

the memorabilia in question. Monica professed that the computer that she

used to create the inventory had crashed in the fall of 2013 and that the

camera cards that she used to take pictures of the collectibles were

damaged during a flood in her home. Monica admitted that she discarded

the computer and camera cards.




                                     - 20 -
J-A24013-16



      During discovery, Elaine requested the computer and camera cards to

ascertain if the spreadsheet inventory was actually prepared and if the

pictures were taken before July 2012, instead of in May 2013, at the

attorney’s office. Elaine presented an expert witness who reported that, if

Monica had not discarded the laptop and camera cards and had produced

them for examination, information could have been recovered from the

computer and camera cards regarding when the inventory spreadsheet was

created and the pictures were taken.      Elaine noted that Monica knew that

the computer and camera cards could be pertinent in this matter by May

2013, when she allegedly discovered that articles were missing from the

collection, and thereafter destroyed the laptop and camera cards in the fall

of 2013.

      As we observed in Rodriguez v. Kravco Simon Co., 111 A.3d 1191

(Pa.Super. 2015), penalties for spoliation of evidence have been applied

since the early 17th century.     The spoliation doctrine is applicable to any

case “where ‘relevant evidence’ has been lost or destroyed.” Mount Olivet

Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1269

(Pa.Super. 2001), aff'd sub nom. Mount Olivet Tabernacle Church v.

Edwin Wiegand Div., 811 A.2d 565 (Pa. 2002). A party’s destruction or

loss of proof that is pertinent to a lawsuit can result in a variety of sanctions.

Parr v. Ford Motor Co., 109 A.3d 682 (Pa.Super. 2014).

      In reviewing the propriety of a sanction for spoliation, “we must

determine whether the court abused its discretion.”         Id. at 701 (citation

                                     - 21 -
J-A24013-16



omitted).     The trial court weighs three factors in deciding upon an

appropriate penalty for spoliation, “(1) the degree of fault of the party who

altered or destroyed the evidence; (2) the degree of prejudice suffered by

the opposing party; and (3) whether there is a lesser sanction that will avoid

substantial unfairness to the opposing party and, where the offending party

is seriously at fault, will serve to deter such conduct by others in the future.”

Id. at 702 (citation omitted). For purposes of

      evaluation of the first prong, “the fault of the party who altered
      or destroyed the evidence,” requires consideration of two
      components, the extent of the offending party's duty or
      responsibility to preserve the relevant evidence, and the presence
      or absence of bad faith. The duty prong, in turn, is established
      where: (1) the plaintiff knows that litigation against the
      defendants is pending or likely; and (2) it is foreseeable that
      discarding the evidence would be prejudicial to the defendants.”

Id. (citations omitted).

      One sanction that a court may choose to impose when evidence is lost

or destroyed is to instruct the jury that it may infer “that the destroyed

evidence would have been unfavorable to the position of the offending

party.”     Rodriguez, supra. at 1196.        The rationale for this spoliation

inference is “nothing more than the common sense observation that a party

who has notice that evidence is relevant to litigation and who proceeds to

destroy evidence is more likely to have been threatened by” the proof in

question. Id.

      The crux of this lawsuit involved Monica’s accusation that items in the

memorabilia collection were missing after it was taken on July 9, 2012. She


                                     - 22 -
J-A24013-16



represented that she inventoried eighty percent of the collection before July

9, 2012, and presented proof of her inventory that consisted of spreadsheets

created in a computer and pictures contained in camera cards.             An

examination of the computer and camera card by Elaine’s expert witness

would have led to verification as to when the pictures were taken and the

spreadsheets were created.       After May 2013, when she purportedly

discovered the missing items, Monica intentionally destroyed the computer

and camera cards, which created evidence used in this lawsuit and which

could have been examined by Elaine’s expert.

     Based upon these facts, the trial court allowed the jury, in its

discretion, to decide whether Monica credibly explained why the computer

and camera card were unavailable for Elaine’s inspection. To wit, the trial

court disseminated the Standard Jury Instruction for Spoliation of Evidence,

Instruction 5.60:

           If a party disposes of a piece of evidence before the other
     party had an opportunity to inspect it, and the party who
     disposed of the evidence should have recognized the evidence
     was relevant to an issue in this lawsuit, then you may find that
     this evidence would have been unfavorable to them, unless
     they satisfactorily explain why they disposed of this
     evidence.

N.T. Trial (Vol. II), 6/10/15, at 963 -64 (emphases added).

     On appeal, Appellants posit that there was no bad faith by Monica

since the computer crashed and the camera cards were damaged by water.

However, whether or not Monica acted in bad faith was wholly dependent on



                                   - 23 -
J-A24013-16



whether her testimony about how the objects came to be destroyed was

worthy of belief.      Appellate courts do not decide whether someone has

testified truthfully, and we cannot find that Monica operated in “good faith”

unless we credit her explanation of why she disposed of the evidence. The

jury was given the task of deciding if Monica was being truthful about why

she destroyed the computer and camera card. There was no error in this

respect.

      Appellants also suggest that the spoliation charge was not warranted

because the computer and camera cards had “no evidentiary value.”

Appellants’ brief at 34. Once again, a finding that the computer and camera

cards had “no evidentiary value” requires that we credit that the computer

crashed and that the cards were water-damaged.         Elaine’s expert witness

reported that the computer would have revealed whether the spreadsheets

were created before July 2012 rather than after May 2013, when Monica had

unfettered access to the collection alone in a room. In light of the facts in

question, the important nature of the evidence in question, and Monica’s

actions, we cannot find that the trial court abused its discretion in giving the

spoliation charge at trial.   We therefore decline to grant Appellants a new

trial on this basis.

      Appellants’ fifth averment is that the trial court improperly granted a

nonsuit against them as to their trespass cause of action.

          A nonsuit is proper only if the jury, viewing the evidence and
      all reasonable inferences arising from it in the light most
      favorable to the plaintiffs, could not reasonably conclude that

                                     - 24 -
J-A24013-16


        the elements of the cause of action had been established.
        Furthermore, all conflicts in the evidence must be resolved in
        the plaintiff[s'] favor. In reviewing the evidence presented we
        must keep in mind that a jury may not be permitted to reach a
        verdict based on mere conjecture or speculation. We will
        reverse only if the trial court abused its discretion or made an
        error of law.

Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa.Super. 2016).

        In Pennsylvania, a person is subject to liability for trespass on land in

accordance with the dictates of Restatement (Second) of Torts § 158.

Liberty Place Retail Assocs., L.P. v. Israelite Sch. of Universal

Practical Knowledge, 102 A.3d 501, 506 (Pa.Super. 2014).

              One is subject to liability to another for trespass,
        irrespective of whether he thereby causes harm to any legally
        protected interest of the other, if he intentionally

              (a) enters land in the possession of the other, or causes a
              thing or a third person to do so, or

              (b) remains on the land, or

              (c) fails to remove from the land a thing which he is under
              a duty to remove.

Restatement (Second) of Torts § 158. “One cannot be guilty of a trespass

by illegal entry if his wrong is committed subsequent to a rightful entry

where such entry was by permission of the owner. Restatement, Torts, §

158.”    Gedekoh v. Peoples Nat. Gas Co., 133 A.2d 283, 284 (1957).

Thus, “[a] right of entry constitutes an absolute defense to an action in

trespass.” Id. at 284-85.

        To establish the circumstances surrounding Elaine’s July 9, 2012 entry

into the Jordan Road property, Monica presented as witnesses her children,

                                      - 25 -
J-A24013-16



Edric and Aubrey, and Elaine. Elaine reported that James asked her to come

with him to his home. When Elaine arrived at the residence, she followed

James inside. Edric testified that, when Elaine and James came to the door,

he and his sister granted them entry.        Aubrey confirmed that James and

Elaine arrived together to enter the residence.

      Monica suggests that James could not authorize entry into his own

home because he had been adjudicated an incapacitated person on May 24,

2012. First, as previously stated, the emergency order was entered upon an

allegation of incapacity.   Second, in the order, the trial court found that

James was impaired, not incapacitated.          Finally, the order in question

lapsed on June 23, 2012, and was not in effect when James authorized

Elaine to enter the home. Monica’s evidence proved that a co-owner of the

home, James, consented to Elaine’s entry, and that consent abrogated

Monica’s right to bring an action for trespass against Elaine. Hence, the trial

court properly granted nonsuit as to the trespass count.

      In their final averment on appeal, Appellants complain that the trial

court improperly granted a nonsuit as to their claim for punitive damages.

Our Supreme Court set forth in Hutchison ex rel. Hutchison v. Luddy,

870 A.2d 766, 770–71 (Pa. 2005):

           The standard governing the award of punitive damages in
      Pennsylvania is settled. “Punitive damages may be awarded for
      conduct that is outrageous, because of the defendant's evil
      motive or his reckless indifference to the rights of others.” Feld
      v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting
      Restatement (Second) of Torts § 908(2) (1979)); see also


                                    - 26 -
J-A24013-16


     Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358
     (1963). As the name suggests, punitive damages are penal in
     nature and are proper only in cases where the defendant's
     actions are so outrageous as to demonstrate willful, wanton or
     reckless conduct. See SHV Coal, Inc. v. Continental Grain
     Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at
     747-48; Chambers, 192 A.2d at 358. See also Restatement
     (Second) of Torts § 908, comment b. The purpose of punitive
     damages is to punish a tortfeasor for outrageous conduct and to
     deter him or others like him from similar conduct. Kirkbride v.
     Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803
     (1989); Restatement (Second) of Torts § 908 (1) (“Punitive
     damages are damages, other than compensatory or nominal
     damages, awarded against a person to punish him for his
     outrageous conduct and to deter him and others like him from
     similar conduct in the future.”). Additionally, this Court has
     stressed that, when assessing the propriety of the imposition of
     punitive damages, “[t]he state of mind of the actor is vital. The
     act, or the failure to act, must be intentional, reckless or
     malicious.” See Feld, 485 A.2d at 748; see also Martin v.
     Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12
     (1985) (plurality opinion).

     Appellants’ position that Elaine’s conduct warranted the imposition of

punitive damages is untenable.

     Elaine did not operate with evil motive or with reckless indifference to

anyone’s rights. Elaine’s actions were not so outrageous as to demonstrate

willful, wanton or reckless conduct.   Elaine acted upon legal advice that

James could enter his own home and retrieve his own personal property.

Punitive damages clearly were not warranted herein, and the trial court

correctly granted nonsuit as to that claim.       See Phillips v. Cricket

Lighters, 883 A.2d 439, 447 (Pa. 2005) (manufacturer that failed to place

child safety features on its lighters to avoid harm to children playing with

them did not engage in conduct that “was so outrageous as to support an



                                   - 27 -
J-A24013-16



award of punitive damages.”); Valentino v. Philadelphia Triathlon, LLC,

150 A.3d 483, 488–89 (Pa.Super. 2016) (triathlon organizer was not subject

to liability for punitive damages in connection with death of triathlon

participant where allegations sounded in negligence, even though averments

included that defendant was “inattentive to the needs of the contestants,

failed to inspect or maintain the event course, failed to warn of or remove

dangerous conditions, failed to properly plan or organize the event, failed to

follow safety standards, and failed to properly train and supervise its

employees.”).

      As we conclude that Appellants’ allegations on appeal do not warrant

the grant of relief, we affirm.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2017




                                    - 28 -
