J-A07045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ESTATE OF PERRY M.                 IN THE SUPERIOR COURT OF
MCKEAN, DECEASED                                    PENNSYLVANIA
JUNE L. CONFER, ADMINISTRATRIX




APPEAL OF: LARRY HAINES

                                                  No. 1396 MDA 2013


               Appeal from the Order Entered July 12, 2013
              In the Court of Common Pleas of Centre County
                                   at No: 2012-0378


BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 20, 2014

     Appellant Larry Haines appeals the July 12, 2013 order of the Court of



ordering him to return certain firearms and life insurance proceeds.   After

review, we affirm.

     The factual and procedural background of this matter can be

summarized as follows. Perry M. McKean (McKean) lived in Centre County.



finance

to a hospital in Clinton County.   Upon release from the hospital, McKean

became a resident of the Heartland Personal Care Home, Clinton County. In

                                      o Adjudicate Incapacity and Appoint a
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                                                 1
                                                     After a hearing, the trial

court declared McKean incapacitated and appointed Appellant as plenary

guardian of the estate and his person (May 31, 2012).        Shortly after the

appointment, McKean died intestate, survived by 35 heirs at law.

       In August 2012, Appellee June L. Confer, the Administratrix of



letters of administration, which the trial court promptly granted. In February




cause why he should not account for all funds spent, with receipts and



at 2. The trial court scheduled a hearing on the petition for April 27, 2013.

The scheduling order was mailed and received by Appellant.           Appellant

appeared at the hearing pro se.




____________________________________________


1
  In the petition, Appellant alleged, inter alia
dementia to the degree that he cannot make or communicate responsible


                                                            djudication of
Incapacity and for the Appointment of a Plenary Guardian of the Estate and
Person of Perry M. McKean, 5/3/12, at 2, 3.



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      At the April 27, 2013 hearing, Appellant testified, inter alia, that: (i)

McKean granted him a power of attorney sometime in 2011, (ii) McKean




alerted me. He said he has dementia and he said he has got

4/27/13, at 13-14; (iv) in January 2012, he named himself as a beneficiary

                                                            id. at 16, and as

                                                    id.; (v) in January 2012,

Appellant took possession of the firearms, as a gift from McKean, id. 15, 18;

(vi) both gifts (insurance proceeds and firearms) were made by McKean

while he was suffering from dementia, id. at 16, 21, and (vii) a caseworker




Id. at 15.

      On May 9, 2013, the trial court issued an order and findings directing

Appellant to return the firearms and the life insurance proceeds. On May 20,

2013, counsel for Appellant filed exceptions to the May 9, 2013 order. As a

result, the trial court vacated the May 9, 2013 order.       Appellee, in the

meantime, also filed an answer to the exceptions. A hearing was scheduled

to address the exceptions and the answer for June 25, 2013. At the hearing,



supplement his own testimony. In particular, the trial court noted Appellant

testified at the previous hearing, was given ample opportunity to address the

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court, and there was nothing else Appellant could add.         Regarding the

additional evidence Appellant intended to offer (doctor report and bank

records), the court noted the evidence would not be admissible (and counsel

for Appellant acknowledged so).      The trial court, nonetheless, allowed



[chronological list of events relevant to the matter] and Pertinent documents

[several documents Appellant intended to introduce in evidence through his



court confirmed the May 9, 2013 order, adding some language pertaining to

                                                                            ]

must return certain firearms and that the life insurance policy proceeds be



at 2. This appeal followed.

     Appellant raises the following claims for our review:

     1. Did the [trial court] commit [an] abuse of discretion or error
        of law by determining that the April 17, 2013, proceeding

        the allegation that the pre-guardianship transfer by Mr.
        McKean to Appellant were invalid and that therefore the gifted
        guns and the life insurance proceeds had to be turned over to

        referred only to post-guardianship activities and did not
        mention life insurance at all?

     2. Was the evidence received at the April 17, 2013, proceeding

        guns and his life insurance beneficiary designation?




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      The first claim, stated clearly, is whether the trial court erred in

refusing to reopen the proceeding to allow Appellant     who acted pro se up

to that point to introduce additional evidence after he retained counsel. We

                                   eopening the proceeding as follows:


     the case after a party has closed for the taking of additional
     testimony, but such matters are peculiarly within the sound
     discretion of the trial court, and a denial of (an) opportunity for a
     rehearing for the purpose of introducing additional evidence will
                                       Commonwealth v. Deitch Co.,
     449 Pa. 88, 295 A.2d 834 (1972). Such a ruling will be disturbed
     only if the court has abused its discretion. Thomas v. Waters,
     350 Pa. 214, 38 A.2d 237 (1944). See also Van Buren v.
     Eberhard, 377 Pa. 22, 104 A.2d 98 (1954).

In re J.E.F., 409 A.2d 1165, 1166 (Pa. 1979).

     D




brief is devoid of any citation to authorities supporting his claim the trial

court should have provided him with another opportunity to supplement the

record once he retained counsel.

     Nonetheless, the claim is without merit for several reasons. Appellant,

who chose to appear and proceed pro se up to the April 17, 2013 hearing,

cannot now blame others for the consequences of his choices. See Branch

Banking & Tr. v. Gesiorski,                                                  pro

se litigant is not entitled to any particular advantage because he lacks legal

training; any layperson choosing to represent himself in a legal proceeding

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J-A07045-14


must, to some reasonable extent, assume the risk that his lack of expertise



       The trial court also no

opportunity to present evidence or testify during the April 17 [h]earing.

Rather, [Appellant] simply did not utilize the opportunity this [c]ourt granted

                                                               asked Appellant



evidence or issues to bring before [the trial court]. [Appellant] brought no

                                                 Id. at 7. The trial court also

noted:

       Further, [Appellant] was indeed encouraged to obtain counsel,
       but in no way did this allow [Appellant] a second bite at the
       apple. Rather, this court urged [Appellant] to retain an attorney
       to aid in dealing with any consequences of the April 17
       [h]earing. [Appellant] did, in fact, retain counsel after the April
       17 [h]earing, but this retention cannot permit [Appellant] a
       second chance to prove the case.

Id. at 8 (citation to record omitted).

       Appellant also fails to mention the trial court held a hearing on June
                                                                             2
                                                                                 At



testimony because it had heard sufficient evidence from Appellant himself at
____________________________________________


2
  We are unsure how the trial court could vacate the May 9, 2013 order and,
at the same time, hear exceptions to an order which just had been vacated.
However, neither the parties nor the trial court raises this issue.




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J-A07045-14


the prior hearing on the

The trial court, however, appeared willing to consider other evidence



made. The evidence, however, as acknowledged by Appella

inadmissible. Id. at 10-11.

       In light of the foregoing, we conclude the trial court did not abuse its



Appellant to supplement his testimony.

       Appellant also argues an additional hearing was necessary because the

petition for citation of guardian concerned only post-guardianship gifting.3 It

was only at the April 17, 2013 hearing

of guardian                                       g would also cover pre-guardian

activities. The issue is without merit.

       Appellant    omits    some     important   procedural   details,   which   are

important to understand what actually happened. As a review of the notes

of testimony of the April 17, 2013 hearing reveals, some of the information

gathered at the hearing was not available to Appellee at the time of the filing

of the petition.    At the hearing, after Appellant disclosed he removed the

firearms in January 2012 and that around that same time he also named

himself beneficiary of a life insurance, there was some discussion, on the
____________________________________________


3
  As noted above, the trial court of Clinton County appointed Appellant as
guardian on May 31, 2012.



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J-A07045-14


record, on how to proceed with the information gathered at the hearing.



petition requesting the return of the firearms and needed to consult with his

client regarding the insurance proceeds. The trial court, however, suggested



the firearms voluntarily, without the necessity of filing another petition. So,

he did.    Appellant replied, apparently reiterating the firearms were a gift.

The trial court then noted the gift was made by an incapacitated person to a



atto

Appellee suggested Appellant retain counsel, which eventually he did. What



blame others for his choice to appear, testify, answer questions from the

trial court and Appellee, or for appearing unrepresented.

       Next, Appellant argues the evidence was insufficient to impose what



proceeds.4 Despite how Appellant titled the claim, he is in fact challenging

____________________________________________


4
 In Koffman v. Smith, 682 A.2d 1282, 1290-91, (Pa. Super. 1996), this
Court stated:

       A constructive trust arises where a person who holds title to
       property is subject to an equitable duty to convey it to another
       on the ground that he would be unjustly enriched if he were
       permitted to retain it. Traditionally, constructive trusts have
(Footnote Continued Next Page)


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J-A07045-14


the weight, not the sufficiency of the evidence. See



                                                  this end, Appellant points to

various portions of his own testimony suggesting the weakened condition

and dependence of decedent was not so severe as to render him



testimony indicating that decedent, at relevant times (i.e., the times when

the gifts were made, January 2012), suffered from dementia.          See Trial

Court Opinion, 10/4/13, at 10-11; see also N.T., 4/17/13, at 10, 15. The

                       _______________________
(Footnote Continued)

      been imposed where a party acquires legal title to property by
      violating some express or implied duty owed to another.
      Generally, an equitable duty to convey property arises only in
      the presence of fraud, duress, undue influence, mistake or abuse
      of a confidential relationship.    There is, however, no rigid
      standard for determining whether the facts of a particular case
      require a court of equity to impose a constructive trust; the test
      is merely whether unjust enrichment can be avoided.

Id. (quotation marks and citations omitted).

Appellate review of equity matters is as follows:

      The trial judge, sitting in equity as a chancellor, is the ultimate
      fact-finder. The scope of review, therefore, is limited. The final
      decree will not be disturbed unless the chancellor committed an
      error of law or abused his or her discretion. The findings of fact
      made by the trial court will not be disturbed unless they are
      unsupported by competent evidence or are demonstrably
      capricious.

Roberson v. Davis, 580 A.2d 39, 40 (Pa. Super. 1990) (quotation
marks and citations omitted).



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trial court was free to believe all, some or none of the testimony. It is not

our role to re-

       The trial court also found Appellant, who held a power of attorney

granted by McKean, occupied a position of trust to McKean.                Trial Court

Opinion, 10/4/13, at 13. Wh



                                                       Id.

                                                         Id., at 10, 13 (citing In

re Shahan, 631 A.2d 1298, 1303 (Pa. Super. 1993) for the proposition that



                                                   5



       Furthermore, the trial court noted Appellant

the power to gift assets on behalf of the princip[al] if that power was

                                                             Id. (citing 20 Pa.C.S.A.


____________________________________________


5
     confidential relationship while not confined to any specific association of
parties, . . . generally exists between . . .principal and agent    Shydlinski
v. Vogt, 179 A.2d 240, 242 (Pa. 1962) (quotation marks and citation
omitted); see also Biddle v. Johnsonbaugh, 664 A.2d 159, (Pa. Super.
             confidential relationship is deemed to exist as a matter of law
between a trustee and cestui que trust, guardian and ward, attorney and
client, and principal and agent
such a relationship does not in itself cause a constructive trust to be
imposed; its effect is simply to impose a burden upon the party benefiting
from the transaction of proving that he took no unfair advantage of his
                                 DePaul v. DePaul, 429 A.2d 1192, 1194 (Pa.
Super. 1981) (citation omitted).



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§ 5601.2;6 Metcalf v. Pesock, 885 A.2d 539, 541 (Pa. Super. 2005)).

Here, as t



____________________________________________


6
    In relevant part, Section 5601.2, reads as follows:

        Special rules for gifts

        (a) General rule.--A principal may empower an agent to make
        a gift in a power of attorney only as provided in this section.

        (b) Limited gifts.--A principal may authorize an agent to make
        a limited gift as defined under section 5603(a)(2) (relating to
        implementation of power of attorney) by the inclusion of:

           (1) the language quoted in section 5602(a)(1) (relating to
           form of power of attorney); or

           (2) other language showing a similar intent on the part of the
           principal to empower the agent to make a limited gift.

        (c) Unlimited gifts.--A principal may authorize an agent to
        make any other gift only by specifically providing for and


20 Pa.C.S.A. § 5601.2(a)-(c).

Pursuant to Section 5603,


        make only gifts for or on behalf of the principal which are limited
        as follows:

        (i) The class of permissible donees under this paragraph shall
        consist solely of the principal's spouse, issue and a spouse of the
        principal's issue (including the agent if a member of any such
        class), or any of them.

20 Pa.C.S.A. § 5603(a)(2)(i).



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assets.      And yet, the evidence presented at the April 17 [h]earing

demonstrated that [Appellant] did, in fact, gi

Id.

      Appellant argues the trial court erred on this issue, without specifically



gift of guns and life insurance proceeds to Appellant were valid despite the

fact Appellant was an agent of McKean because McKean offered the gifts to

Appellant in return for services rendered. According to Appellant, such rule

applies even if the donor was weakened and dependent at the time he made

the gifts.    In support, Appellant cites, in the following order, Joseph v.

Eastman, 344 F.2d 9 (3d Cir. 1965), Estate of Meyers, 642 A.2d 525 (Pa.

Super. 1994), Williams v. McCaroll, 97 A.2d 14 (Pa. 1953), and Estate of

Augustine, 695 A.2d 836 (Pa. Super. 1997).

      The caselaw Appellant relies upon is inapposite.         With regard to

Joseph, the court of appeals did not apply Pennsylvania law, as such its

authoritativeness is limited.    Meyers deals with the determination of

property rights among parties to a joint account, which is not the case here.

Williams deals with the burden of proof as to testamentary capacity, which

is not at issue here.    Augustine, the only case dealing with a power of

attorney, is cited for the proposition that a wife had authority to transfer her

                                                   a broad power of attorney,

regardless of the self-dealing nature of the gift to herself. Appellant fails to


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recognize Augustine was overruled by enactment of 20 Pa.C.S.A. § 5601.2.

See also Metcalf, 885 A.2d at 541.

      In light of the foregoing, we conclude the trial court did not err or

abuse its discretion in refusing to reopen the proceedings and in ordering the

return of the firearms and the life insurance proceeds with six (6) percent

interest from 5/6/13.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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