By decree dated 28 December 2001, the register of wills appointed petitioner, Theresa Owen, as the administratrix of the estate of
On 8 January 2002, Theresa Owen (petitioner or the estate) in the court of common pleas, orphans’ court division filed a petition for citation to show cause why assets should not be turned over. On the same day, the petition was assigned to the Hon. Joseph D. O’Keefe, A.J. (the court). Respondents are: Prudential Savings Bank (the bank), a state chartered savings and loan association; Frances Mazzei, the manager of the bank’s 19th and Snyder Avenue branch; and Lucia Squitieri, the assistant manager of the same branch.
On 22 February 2002, the bank filed its answer to the petition. On 7 March 2002, Mazzei and Squitieri, filed their answer to the petition as well as a cross-claim for contribution and indemnity against the bank.
The trial in this matter commenced on 4 November 2002, continued through 7 November 2002, and reconvened to hear final testimony on 9 and 28 January 2003, after which petitioner and respondents rested.
FACTS
Carmen DiCesare was bom on 24 January 1917. From 1917 until September 2000, decedent lived at 2023 South 18th Street in Philadelphia, Pennsylvania.
The bank is a mutual savings and loan association.
Occasionally, both Mazzei and Squitieri perform teller functions. When acting as tellers, they must comply with the bank’s teller manual, P-19.
Despite the fact that 70-75 percent of the Snyder Avenue branch’s customers are senior citizens, the bank has
• interacting with senior citizens;
• recognizing signs of mental impairment;
• transacting business with persons whom they believe, or have reason to suspect, are mentally impaired;
• bank ethics; or
• recognizing and resolving potential conflicts of interest.
As of 7 August 2000, the bank had no consistent, written, or distributed conflict of interest policy.
The bank does not re-certify or test its employees on policies and procedures after their initial training.
As an adult, Mazzei’s interactions with decedent resulted from her employment with the bank.
Squitieri first met decedent in late 1998, solely as a result of her employment at the bank.
Neither Mazzei nor Squitieri socialized with decedent outside of the bank’s Snyder Avenue branch.
From November 1997 through January 2000, Dr. Vincent Renzi treated decedent.
On 12 March 1998, Dr. Renzi prescribed Aricept for decedent.
On 19 January 1999, more than 20 months before the ITF account’s creation, Dr. Renzi observed decedent as disheveled, unshaven, and with decreased attention to bathing.
On 24 September, Dr. Renzi spoke with decedent about the MMSE score and decedent’s progressive forgetfulness.
On 6 January 2000, eight months before the ITF account’s creation, Dr. Renzi’s physician’s assistant (PA) observed decedent to be a “poor historian,” with “speech tangential @ times,” and “distractable [sic].”
In spring 2000, decedent asked Mrs. Destra if she had seen “people going in and out of his house, stealing his money.”
More than once around this time, decedent locked himself out of his house. In one such instance, Mrs. Destra told decedent that she had telephoned a locksmith to assist him. After a short wait, decedent stated, “You people didn’t call anybody,” and walked away.
During this time, decedent lost his passbook for the bank account number 17699, an account which he had held since 1993
By July 2000, decedent stopped visiting Mr. Johnson.
• would be expected to have an MMSE score of 18 or 19, nine to 10 points below the average score for his age; and
• would have been subject to the influence and persuasion of persons whom he trusted.
Most laypersons, particularly those who had observed decedent over an extended period of time, by then would have noticed distinct changes in decedent’s behavior and mentation leading them to question decedent’s mental well-being.
On 8 August 2000, decedent allegedly stated that he wanted to switch his social security direct deposit from Sharon Savings to the bank.
Rather than opening a new account of the same type as account 17699, Mazzei and Squitieri opened account 31273 in trust for (ITF) themselves.
Mazzei telephoned Vento for permission to open the account.
The court counts at least six documents created upon opening, or related to, the ITF account that violated the bank’s policy and procedure, as follows:
First, the bank’s customer account agreement, P-25, contains general terms and conditions governing all of the bank’s accounts.
With ITF accounts, the bank requires the customer to sign both sides of an account card, P-8. One side of P-8 is entitled “Trust account,” while the other side is entitled “Discretionary revocable trust agreement.”
Second, either Mazzei or Squitieri created a passbook for the ITF account, P-11.
Either Mazzei or Squitieri also created a duplicate passbook.
Third, at Mazzei’s direction, decedent signed a document which Mazzei typed, P-7, as follows:
“I [decedent] on 8-8-00 open new account #01-90-31273.1 wish to put the account in trust to Frances Mazzei and Lucia Squiieri [sic].”74
P-7 is the only plain-English description of what decedent was doing on 8 August 2000.
Fourth, Mazzei told decedent that he needed to create a new account to directly deposit his social security check. Yet, Mazzei could not close and move account 17699 funds into the ITF account without a passbook. Mazzei and Squitieri, thereafter, completed a lost passbook affidavit for account 17699.
P-9a contains a box for notary attestation.
Fifth, for all new accounts, the bank requires customers to read and sign a customer account agreement.
The customer account agreement for the ITF account, P-25, is handwritten, not typed.
The ITF account initially contained $247,165.34 as transferred from account 17699.
On 9 August 2000, $122,026.05 was withdrawn via check from Sharon Savings and deposited into the ITF account.
In violation of bank policy, Mazzei or Squitieri accepted the checks from Sharon Savings without decedent’s endorsement.
In early September 2000, a police officer brought decedent to Mr. Johnson’s home. The police officer said that decedent had been wandering, and had locked himself out of his home. Mr. Johnson helped decedent re-enter his home. Later that day, decedent again locked himself out of his home and returned to Mr. Johnson’s home.
On Monday, 18 September 2000, decedent was found wandering and in a confused state within St. Agnes Hospital.
On 19 September 2000, decedent left St. Agnes Hospital against medical advice and unnoticed by the staff.
On Friday, 22 September 2000, decedent wandered into the Cambridge Retirement Center. He presented as disheveled, dirty, unshaven, confused, disoriented, and with dirty clothing.
Mrs. Curley photocopied the duplicate passbook, and kept a copy in Cambridge’s records.
Upon decedent’s return to Cambridge, a doctor told Mrs. Curley to contact Roxborough Hospital about decedent.
From 21 September 2000 through 16 November 2000, while the above was taking place, Mazzei and Squitieri neither saw decedent nor knew where he was.
The bank’s policy prohibits transactions in an ITF account unless the customer is physically present or specifically requests a transaction in his absence. In addition, Mazzei testified that she personally does not update passbooks for interest.
On 15 November 2000, Mazzei, who had not seen decedent in almost two months, asked several police officers then conducting business at the bank to help locate decedent.
On 16 November 2000, Kirkbride transferred decedent to Cambridge.
Mrs. Curley completed a Resident/Profile transfer sheet reflecting that “resident at admission has private duty home aide — 24 x 7.”
On 16 November 2000, Mr. Palmieri, Squitieri and Mazzei visited decedent at Cambridge. Decedent did not know where he was.
Sometime before 6 December 2000, Mr. Palmieri involved himself in decedent’s affairs. Mr. Palmieri asked decedent if he had a doctor, and decedent said that he did not.
On 7 December 2000, Kirkbride re-admitted decedent for emergency psychiatric care.
On 19 January 2001, Mr. Palmieri petitioned the court for appointment as decedent’s guardian. Mr. Palmieri represented that decedent was “totally unable to manage
On 8 February 2001, Kirkbride transferred decedent to Methodist Nursing Home. Dr. Novitsky noted “[Decedent’s] memory is still poor, but as part of a dementing process, I do not expect this to resolve.”
The court held a guardianship hearing on 7 March 2001. Decedent who was then 84 years old testified that he was 55 years old, and that he did not know where he was.
On 13 June 2001, decedent died. Six days hence, Mazzei and Squitieri received $698,566.72 from the ITF account.
The bank’s policy prohibited Mazzei or Squitieri from conducting transactions in account #4964.
To circumvent the bank’s policies, Mazzei approved and conducted Squitieri’s transfers.
Sometime before 24 September 2001, Mazzei learned that decedent’s relatives had contacted Mr. Palmieri.
During the two days after being informed that decedent’s heirs were represented by counsel, Mazzei and Squitieri removed the remaining $408,000 from the bank.
Mazzei moved funds which she withdrew into a Police Fire Credit Union account held with her husband.
LEGAL ANALYSIS
The estate seeks the turnover of ITF account proceeds. The estate clearly and convincingly has proven that Mazzei and Squitieri both directly and indirectly unduly influenced decedent to open the account, and to name them as beneficiaries of the account. The estate has proven by a preponderance of evidence that the bank must answer for its employees’ actions under the respondeat superior doctrine. Moreover, the bank must account for negligently supervising Mazzei’s and Squitieri’s opening of the ITF account, and ultimate asset dissipation.
A. The Estate Has Proven Indirect Undue Influence
In Estate of Clark
(1) Testimony by the treating physician, lay witness, and expert witness proved “weakened intellect”
In Paolini Will,
“A mind which, in all the circumstances of a particular situation, is inferior to normal minds in reasoning, power, factual knowledge, freedom of thought and decision, and other characteristics of a fully competent mentality. It should be viewed essentially as a relative state as the term is applied to cases of undue influence, as these cases always involve the effect of one intellect upon another; if the intellect of the testator is substantially*318 impaired in comparison to that of the proponent or beneficiary it must be regarded as weakened since there could be no equal dealings between the two parties.”
In the present case the treating physician, eyewitness observations, and expert opinion
At least four physicians who examined decedent in the last three years of his life diagnosed him with chronic irreversible dementia. Decedent’s primary physician, Dr. Vincent Renzi, unofficially
• decedent was suffering from progressive irreversible dementia;
• decedent’s progressive dementia was clinically apparent in 1998;
• decedent’s dementia had progressed to the mild stage by January 1999;
• decedent’s dementia worsened throughout 2000;
• in August 2000, decedent would have been vulnerable to undue influence or persuasion by people in whom he trusted;
• by August 2000, decedent would have had difficulty with previously familiar transactions;
• by August 2000, decedent’s intellect would have been weakened;
• in August 2000, decedent would have been vulnerable to elder abuse; and
• by August 2000, decedent’s dementia would have manifested enough symptoms that most laypersons, especially those who saw him over a period of months or knew him over an extended period of time would have been able to observe changes in his behavior.
The court finds that no credible expert or lay witness has contradicted Dr. Steim.
A confidential relationship exists “when the circumstances make it certain the parties [did] 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.”
A confidential relationship exists when one person occupies a position so as to reasonably inspire confidence that he will act in good faith for the other’s interest or occupies a position over another, intellectually, physically or morally, with the opportunity to use the superiority to other’s advantage.
• Mazzei testified that decedent trusted her;
• decedent allowed only Mazzei and Squitieri to perform his transactions.
• Mazzei and Squitieri worked at the financial institution, and as employees of the institution, owed decedent certain fiduciary duties, including being bound to act with the utmost good faith for decedent’s benefit and to take no advantage for themselves from their acts relating to decedent,
• decedent’s entrustment of his passbook to Mazzei and Squitieri, clearly indicated his confidence in the bank and the managers;
• Mazzei assisted decedent with his financial affairs and in taking care of his money. Vento testified that
• decedent entrusted his funds “to” not “for” Mazzei and Squitieri;
• decedent did trust Mazzei and Squitieri as evidenced by the fact that when they told decedent that he needed to open a new savings account to establish direct deposits, he believed them and acted on that direction;
• decedent trusted the bank and its employees as members of his own community. He believed that neither the bank nor its employees would mislead or misguide him. He trusted them as a child trusts its parents.
All of these factors, together with the general principle, agreed to by Vento, that the bank’s customers trust the bank to act in their best interests
(1) Mazzei’s and Squitieri’s misdeeds at the creation of the account prove fraud
In August of 2000, decedent was paranoid and incapable of tracking his finances. In his condition, he sought Mazzei’s and Squitieri’s assistance in rerouting his social security direct deposit into his existing account at the bank. Mazzei and Squitieri misrepresented that for decedent to switch his direct deposit he would need to open a new account. Decedent believed Mazzei and Squitieri. Having no reason to doubt the veracity of Mazzei and Squitieri’s representation, decedent relied upon that representation as true. On their own part, Mazzei and Squitieri knew that decedent would not verify their representation with an attorney. The representation, however, was patently false.
Mazzei and Squitieri capitalized on decedent’s trust in them, and opened the ITF through the employ of various artifices including the lost passbook affidavit;
(2) The elaborate and fraudulent asset transfers prove culpable behavior
Mazzei’s and Squitieri’s transfers, particularly those occurring after Palmieri told them that he had met with decedent’s nieces and after Mazzei and Squitieri had met with estate’s counsel, evidence their consciousness of
The fraudulent transfers also prove a common plan or scheme among Mazzei and Squitieri to defraud decedent.
C. Respondents Have Not Met Their Burden of Disproving Undue Influence
Because the estate proved undue influence, respondents bear the burden of proving the absence of undue influence, and bear the risk of non-persuasion. Ordinarily, when a petitioner proves only indirect, or Clark, undue influence, a respondent “has two options: he can attack the basic facts upon which the presumption rests, and/or he can present evidence to rebut the presumption itself.”
In evaluating credibility, the court considers a witness’ interest or lack thereof in the outcome.
To keep the estate’s money and to avoid reversal of fraudulent transfers, Mazzei and Squitieri went to elaborate lengths. In one instance, Mazzei lied to cover a lie, which in its own course covered a previous lie. In other instances, Mazzei
Respondents presented three non-party lay witnesses, as follows:
Anthony Scarpa has known Mazzei for over 30 years and visits the bank daily for coffee and cake.
Paul Perpiglia voluntarily came forward in this matter in November 2002.
Mr. Perpiglia did not witness decedent conduct any personal transactions.
Ms. Giacobbe’s testimony also does not disprove undue influence. This court does not doubt that she attended to decedent during his brief visit to St. Agnes on 16 September 2000. However, Ms. Giacobbe’s testimony did not address decedent’s cognitive functioning. Neither did Ms. Giacobbe’s testimony reveal decedent’s abilities in planning, sequencing, organizing, or abstracting as those tasks relate to one’s intent in disposing of one’s funds.
Dr. Scola proclaimed that decedent was not suffering from dementia, but rather from geriatric depression. This conclusion is contradicted by four treating physicians and two experts, Drs. Streim and Rothman.
A. Standard and Burden of Proof
The respondeat superior doctrine imposes vicarious , liability upon an employer for its employees’ wrongdo
The burden of proving respondeat superior or scope of employment rests with the estate.
B. Mazzei and Squitieri Acted Within the Scope of and by Virtue of Their Employment With the Bank
Mazzei and Squitieri acted within the scope of employment and not a single witness came forth to the contrary. It fell within their employment for Mazzei and Squitieri:
• to interact with, and to open accounts on behalf of bank customers;
• to create documents opening accounts;
• to duplicate and retain decedent’s passbook;
• to fund the ITF account; and
• to develop the trust that obviously existed between Mazzei and Squitieri by the time decedent ingenuously “agreed” to assign them as beneficiaries of the ITF account.
Mazzei and Squitieri’s actions and interactions with decedent took place at the bank and during business hours. But for their employment at the bank, neither Mazzei nor Squitieri would have had any occasion to interact with decedent. Further, but for their employment at the bank, Mazzei and Squitieri lack the wherewithal to hatch their scheme. The bank, therefore, is vicariously liable for the consequences of that scheme.
3. Prudential Negligently Supervised Mazzei and Squitieri
Pennsylvania courts impose liability on employers directly when, inter aha, they negligently or recklessly:
• give improper or ambiguous orders or fail to make proper regulations; or supervise activities; or
• permit or fail to prevent negligent or other tortious conduct by persons, whether or not his servants or agents, upon the premises or with instrumentalities under his control.
The burden of proving negligent supervision falls upon the estate, which must do so by a preponderance of evidence. The estate has provided overwhelming evidence
A. Prudential’s Negligent Environment
Negligence and inconsistency permeate the bank’s environment. The bank does not train employees on interacting with the elderly or mentally impaired, and has no written or consistently applied conflict of interest policy.
Throughout the trial, the court heard evidence of the bank’s selective application of account opening policies and procedures, and unwritten exceptions or modifications to nearly every bank policy applicable to the transactions and documents at issue.
The sequence of events preceding the creation of the ITF account follow. On 8 August 2000, Mazzei effectively told Vento that a mentally-impaired, elderly customer with several hundred thousand dollars, and with whom she had formed a close friendship, wanted to name her and Squitieri as ITF account beneficiaries. Mazzei knew that Vento, over his own instincts, would ultimately accept her representation that decedent did not want to consult an attorney. Moreover, Mazzei knew that when the bank’s counsel did get around to reviewing the transaction, he would do no more than speak to her on the phone without requesting documents or asking to speak with decedent. Additionally, Mazzei and Squitieri, knew that the bank had no procedural controls to catch document irregularities, and that if the irregularities were discovered, the irregularities would be dismissed as business as usual. During the bank’s business as usual, the missing notary attestation, the handwritten consumer account agreement, and the duplicate passbook all went undetected by the authorities within the bank.
The bank’s negligence on 8 August began with the Mazzei/Vento telephone call. At trial, Vento admitted that in that call he authorized Mazzei and Squitieri to open the ITF account even though he should not have.
The bank’s negligence extended beyond the initial telephone call. Mazzei and Squitieri violated the bank’s procedure when they handwrote the consumer account agreement. The bank, on its part, failed or had no control in place to detect this irregularity. The bank should have detected this irregularity.
Had the bank operated according to reasonable banking industry standards, the transaction at issue either would not have occurred, or at the very least, would have been investigated and reversed almost immediately. The
The bank’s negligent supervision defense rests upon the testimony of Attorney Paul Adams. Mr. Adams’ testimony did not disprove the bank’s negligence. In sum, Mr. Adams endeavored to convince the court that the bank did not act negligently because there are no banking industry standards of care applicable to opening an ITF account at an institution of the bank’s size. His conclusion does nothing to persuade the court of its accuracy. In fact, during his testimony, Mr. Adams went so far as to contradict Vento’s testimony that Mazzei and Squitieri should not have opened the account in the first place.
• that it would have been “good practice” and “common sense” for the bank to have verified decedent’s intent;
• that he did not consider that Mazzei and Squitieri had observed changes in decedent’s behavior.
The bank negligently supervised Mazzei and Squitieri in failing to have procedures in place to detect their quid pro quo asset transfers through, and eventually out of the bank’s system. Vento has testified that Botta should have conducted or approved all of the September 24 and 25 transfers. But Botta did not conduct or approve those transfers. The bank should have had a control in place to detect the quid pro quo. But the bank did not. Thus,
CONCLUSION
After a thorough consideration of all of the facts and circumstances surrounding this case, the court reverses the ITF account’s creation and grants the petition for turnover of assets. The court holds respondents Mazzei, Squitieri, and Prudential Savings Bank jointly and severally hable for the amount contained in the ITF account as of decedent’s death, less taxes and funeral expenses. Pursuant thereto, the court enters judgment in the amount of $563,767.40, together with interest, costs, and attorneys’ fees.
ORDER
And now May 5,2003, after a thorough consideration of all of the facts and circumstances surrounding this present matter, the court hereby orders and decrees a reversal in the creation of the ITF account at issue, that account which favored respondents Mazzei and Squitieri as beneficiaries, and hereby grants the relief sought by petitioner in approving the petition for turnover of assets.
. Before the events at issue, decedent:
• talked with his neighbor of 28 years, Angelina Destra, about his work and other matters, 11/4/02 N.T. 89-90-112;
• visited and talked about five to six times per week with his friend Albert Johnson, who lived one block from decedent, 11/4/02 N.T. 122-27 (affirming P-15);
• knew where and how his money was held;
• was tight with his money, 11/4/02 N.T. 116-17;
• maintained numerous savings and checking accounts at the bank and at Sharon Savings Bank, see e.g. P-21 to P-24; and
. For example:
• from 1993 through 8 August 2000, decedent maintained a savings account at the bank in his name alone, and
• since 1997, decedent maintained a checking account at the bank in his name alone. 11/4/02 N.T. 51-52, 54-55; P-42; P-5.
. 11/4/02 N.T. 43, 154.
. 11/6/02 N.T. (I) 280. The bank is owned by its depositors who trust the bank’s management to act in the depositors’ best interests. 11/ 6/02 N.T. (I) 280.
. 11/4/02 N.T. 34.
. 11/4/02 N.T. 38-39.
. 11/4/02 N.T. 34-35; 11/6/02 N.T. (I) 281-82.
. 11/4/02 N.T. 36; 11/6/02 N.T. (II) 7; P-19.
. 11/6/02 N.T. (II) 14.
. 11/4/02 N.T. 35, 40, 42. In addition, neither the bank’s teller manual, P-19, nor the employee manual addresses transactions with persons whom a teller knows to be, or suspects may be, mentally impaired. 11/4/02 N.T. 40-41; 11/6/02 N.T. (II) 8. Neither the teller manual nor the employee manual addresses bank employees being named as beneficiaries of, or receiving powers of attorney over, customer accounts. 11/6/02 N.T. (II) 13.
. 11/6/02 N.T. (II) 10.
. 11/4/02 N.T. 41-42.
. 11/6/02 N.T. (I) 194-95; 11/6/02 N.T. (II) 31-33.
. 11/4/02 N.T. 42; 11/6/02 N.T. (I) 195-96.
. 11/4/02 N.T. 44.
. 11/4/02 N.T. 43,113.
. 11/7/02 N.T. 35.
. 11/4/02 N.T. 43-44; 11/7/02 N.T. 35.
. 11/4/02 N.T. 125-27 (affirming P-15).
. P-31; P-66 at 2; 11/6/02 N.T. (I) 53-54.
. P-31 at 8; P-66 at 2; 11/5/02 N.T. (II) 72-73.
. P-66 at 2; 11/5/02 N.T. (II) 73-74.
. 11/5/02 N.T. (II) 75; P-31 at 7.
.11/5/02 N.T. (II) 74; 11/6/02 N.T. (I) 55-56. Persons with moderate stage dementia can:
• have trouble recognizing familiar faces and difficulty with the instrumental activities of daily living such as household management;
• have difficulty balancing a checkbook and taking medication on a consistent schedule, 11/5/02 N.T. (Ill) 50;
• lack insight into, and refuse treatment for, their mental impairment, 11/6/02 N.T. (I) 66;
• drastically change their behavioral patterns, 11/5/02 N.T. (II) 88; 11/6/02 N.T. (I) 68;
• have difficulty keeping track of their meals, suffer from poor nutrition and weight loss, 11/5/02 N.T. (II) 83-84;
• become inattentive to personal care and hygiene, 11/5/02 N.T. (Ill) 11; and suffer from paranoia, particularly as to money. 11/5/02 N.T. (II) 86.
By fall 1998, decedent suffered many of these symptoms. For example:
• in September 1998, Mr. Johnson observed that decedent began to lose his faculties and to act very strangely. 11/4/02 N.T. 112-13, 122, 124,127, Mr. Johnson’s observations of decedent’s behavioral changes date to at least September 1998; and
• on 8 December 1998, Dr. Renzi observed that decedent had progressive difficulty remembering why he was taking certain medications. P-31 at 6.
. P-31 at 6; P-66 at 2; 11/5/02 N.T. (II) 102-103.
. 11/4/02 N.T. 43.
. 11/4/02 N.T. 44-45.
. P-31 at 3; P-66 at 2; 11/5/02 N.T. (II) 76-77. Dr. Renzi had not before this date mentioned decedent’s appearance. 11/5/02 N.T. (II) 77; see also, P-31.
. The MMSE is a standard test used in clinical practice, and in research addressing cognitive disorders in older adults. 11/5/02 N.T.
. P-31 at 3; P-66 at 2; 11/5/02 N.T. (II) 81-82; 11/6/02 N.T. (I) 64, 66.
. P-31 at 2.
. P-31 at 2; 11/5/02 N.T. (II) 83.
. P-31 at 5.
. 11/4/02 N.T. 46-49, 51.
. 11/4/02 N.T. 90.
. 11/4/02 N.T. 154-55.
. 11/4/02 N.T. 157. She observed that
• decedent was “not his normal self;”
• decedent’s physical appearance changed. 11/4/02 N.T. 157-59, 165.
For example, decedent would enter Sharon Savings, sit silently, leave for 10 minutes, return, and resume sitting silently. In June 2000, this behavior occurred four times in one week. 11/4/02 N.T. 156. Rivera was able to place this week at a month or two before decedent closed his Sharon Savings accounts. 11/4/02 N.T. 156. Decedent closed his Sharon Savings accounts on 8 August and 9 August 2000. 11/4/02 N.T. 155; P-21; P-22; P-23.
. 11/4/02 N.T. 155.
. 11/4/02 N.T. 92-93.
. 11/4/02 N.T. 59-60; P-5.
. 11/4/02 N.T. 56, 60; P-11.
. 11/4/02 N.T. 60-61.
. 11/4/02 N.T. 122, 143.
. 11/4/02 N.T. 122-27.
. 11/5/02 N.T. (H) 82,104-105; 11/5/02 N.T. (in) 43-44.
. 11/5/02 N.T. (II) 106.
. 11/4/02 N.T. 62.
. 11/4/02 N.T. 62-63.
. 11/4/02 N.T. 62-63; 11/5/02 N.T. (I) 70-71; P-26.
. 11/4/02 N.T. 64.
. 11/4/02 N.T. 64-70, 160-61; P-21; P-45; P-46.
. 11/4/02 N.T. 70.
. 11/6/02 N.T. (II) 35-38, 50-51. During the call, Mazzei said that
• decedent allegedly wanted to make her and Squitieri beneficiaries of an ITF account;
• the account contained over $200,000;
• she had been helping decedent with his financial affairs;
• decedent had a niece living in New Jersey; and decedent visited the Snyder Avenue branch everyday. 11/4/02 N.T. 71,76; 11/6/02N.T. (II) 39-42.
. 11/6/02 N.T. (II) 42.
. 11/6/02 N.T. (I) 199-203; 11/6/02 N.T. (II) 42-43. See 11/4/02 N.T. 72-73; 11/6/02 N.T. (I) 199-200; contrast 11/6/02 N.T. (I) 200-201; 11/6/02 N.T. (I) 199-203; 11/6/02 N.T. (II) 42-43. See 11/4/02 N.T. 72-73; 11/6/02 N.T. (I) 199-200; contrast 11/6/02 N.T. (I) 200-201.
. 11/6/02 N.T. (11)43.
. 11/6/02 N.T. (II) 43. Vento also did not:
• ask decedent’s age, although he assumed decedent was over 65, 11/4/02 N.T. 76; 11/6/02 N.T. (II) 48;
• offer to meet with decedent or suggest that another bank employee such as Corrato or Botta meet with decedent or witness the transaction, even though “when the need arises” Vento often interacts with customers, 11/4/02 N.T. 75-76; 11/6/02 N.T. (II) 51;
• suggest that Mazzei delay the transaction to determine whether decedent would still want to create the account in a day or two, or to allow the bank’s counsel time to meet with decedent, 11/4/02 N.T. 77; 11/6/02 N.T. (II) 47, 54;
• suggest that Carmen travel six blocks to the main office to open the account. 11/6/02 N.T. (II) 63-64.
. 11/4/02 N.T. 79-80.
. 11/4/02 N.T. 74-75.
. 11/6/02 N.T. (II) 44-45.
. 11/64/02 N.T. 75; 11/6/02 N.T. (II) 45-46.
. 11/4/02 N.T. 77; 11/6/02 N.T. (II) 52-53.
. 11/6/02 N.T. (I) 98-100.
. See e.g. P-2; P-5.
. See P-8.
. 11/6/02 N.T. (I) 101-103; P-3; P-8.
. 11/4/02 N.T. 83; 11/6/02 N.T. (I) 100.
. 11/4/02 N.T. 199; P-11.
. 11/4/02 N.T. 203-206.
. The signature is visible under ultra-violet light. 11/4/02 N.T. 201-202.
. See P-28 at EST 457.
. 11/4/02 N.T. 209.
. 11/4/02 N.T. 208; 11/6/02 N.T. (II) 58-59.
. 11/4/02 N.T. 196-97; P-7.
. 11/4/02 N.T. 198.
. 11/4/02 N.T. 197-98; P-7.
. P-9 at 3; P-9a.
. 11/4/02 N.T. 81; P-9a.
. 11/4/02 N.T. 81; P-9 at 3.
. 11/4/02 N.T. 82.
. 11/6/02 N.T. (I) 98-99; see e.g. P-2, P-5, P-42, and P-43.
. 11/4/02 N.T. 52-53, 84; 11/6/02 N.T. (I) 99; see e.g. P-5, P-42, P-43.
. 11/4/02 N.T. 84; P-25.
. 11/4/02 N.T. 85; 11/7/02 N.T. 38-39.
. 11/4/02 N.T. 230-31; 11/7/02 N.T. 41-42; P-26.
. 11/6/02 N.T. (I) 199; see also, P-11.
. See P-9, P-10, P-11 at PR000063 (line 1).
. P-13, P-14, P-11 at PR000063 (line 2).
. P-11 at PR000063 (line 2).
. P-12, P-14, P-11 at PR000063 (line 4).
. P-11 at PR000063 (line 4).
. 11/6/02 N.T. (I) 172, 205-206.
. 11/4/02 N.T. 222.
. 11/4/02 N.T. 79, 224.
. On 9 August 2000, Mazzei informed the bank’s counsel that the ITF account had been opened. The bank’s counsel did not:
• ask or offer to meet with decedent;
• ask to see any account opening documents; or
• speak with Squitieri. 11/4/02 N.T. 226-28; 11/7/02 N.T. 40.
Before this litigation, no one from the bank reviewed Mazzei’s file for decedent. 11/4/02 N.T. 228-29.
. 11/4/02 N.T. 124-25.
. P-27 at EST 330.
. P-27 at EST 321.
. P-27 at EST 332.
. P-27 at EST 332.
. 11/5/02 N.T. (II) 93.
. 11/4/02 N.T. 237-38.
. 11/6/02 N.T. (I) 50, 52.
. 11/4/02 N.T. 232-33.
. 11/5/02 N.T. (II) 50-52, 55; P-28 at EST 460.
. 11/5/02 N.T. (II) 6, 12-13, 50-52.
. 11/5/02 N.T. (II) 6-7, 10.
. 11/5/02 N.T. (II) 6-7, 10.
. 11/5/02 N.T. (II) 6; P-28 at EST 457.
. 11/5/02 N.T. (II) 14, 53.
. 11/5/02 N.T. (II) 14-15.
. 11/5/02 N.T. (II) 16-18.
. 11/5/02 N.T. (II) 16-18, 40-41.
. 11/4/02 N.T. 125, 127-28; 11/5/02 N.T. (II) 16, 42.
. 11/5/02 N.T. (II) 19.
. 11/5/02 N.T. (II) 19.
. While at the CRC, decedent:
• was disoriented;
• was gravely disabled and unable to care for himself;
• wandered into other patients’ rooms;
• urinated in one of the rooms;
• could not sustain appropriate conversation;
• did not know the year or state;
• appeared consumed by preoccupations; and
• scored 2 out of 30 on an MMSE. P-29 at EST 9-11.
Friends Hospital involuntarily committed decedent. P-29 at EST 7, 59. Friends Hospital doctors then treated decedent with antibiotics for a urinary tract infection. P-29 at EST 59-60.
. Widened or enlarged sulci indicate a neuroma cell loss in the brain. 11/5/02 N.T. (II) 96-97.
. Decedent’s diagnosis upon discharge from Friends Hospital included “Dementia not otherwise specified with agitation and psychosis.” Decedent’s condition upon discharge was “Still confused and disoriented secondary to dementia.” P-29 at EST 60.
Upon admission to Kirkbride, decedent
• was found to be in need of emergency in-patient psychiatric hospitalization;
• told Kirkbride personnel that “people want me dead;” and
• stated, “It’s getting harder and harder, I keep repeating things in my head.” P-30 at EST 93.
. P-30 at EST 93-94; 11/5/02 N.T. (II) 99.
. 11/5/02 N.T. (II) 99.
. 11/5/02 N.T. (II) 99.
. P-30 at EST 93.
. 11/4/02 N.T. 236-37.
. 11/4/02 N.T. 238-41.
. 11/6/02 N.T. (I) 105-106.
. 11/4/02 N.T. 245-46.
. 11/4/02 N.T. 244, 246.
. P-28 at EST 445.
. P-28 at EST 471.
. P-28 at EST 472.
. 11/5/02 N.T. (II) 24-25; P-28 at EST 445.
. 11/5/02 N.T. (II) 24-25; P-28 at EST 452.
. 11/4/02 N.T. 247-49; 11/6/02 N.T. (I) 226.
. 11/6/02 N.T. (I) 226.
. 11/6/02 N.T. (I) 110; P-32.
. 11/6/02 N.T. (I) 229.
. While at his home, decedent was disoriented; could not locate his house keys; and did not recognize his lifelong home. 11/6/02 N.T. (I) 219-21.
. 11/6/02 N.T. (I) 219.
. 11/6/02 N.T. (I) 211.
. P-30 at EST 97.
. P-35 at JP00597; see also, 11/6/02 N.T. (I) 229.
. 11/6/02 N.T. (I) 247; P-72.
. P-35.
. P-30 at EST 99.
. P-36 at 33.
. 11/4/02 N.T. 252; 11/7/02 N.T. 42.
.11/4/02 N.T. 253-54; 11/6/02 N.T. (I) 107; P-19 atPR000025, ¶5.
. 11/4/02 N.T. 254; 11/7/02 N.T. 42; P-69 (source P-53).
. 11/4/02 N.T. 253-54; 11/6/02 N.T. (II) 16.
. P-69 reflects these transactions, which were admitted to at 11/ 4/02 N.T. 256-70, and 11/7/02 N.T. 42. Each such transfer implicated the bank’s prohibition against conducting transactions in one’s own accounts, and the bank’s requirement that a manager approve all withdrawals over $1,000.
. 11/4/02 N.T 269-70.
. 11/4/02 N.T. 266-70.
. 11/6/02 N.T. (II) 17-18, 20, 22-23.
. 11/6/02 N.T. (fl) 23.
. 11/4/02 N.T. 270-71; 11/6/02 N.T. (I) 111.
. See P-69.
. Those subsequent withdrawals, reflected in P-69 and admitted to at 11/4/02 N.T. 271-75, 11/7/02 N.T. 42, occurred via cash or check. Each withdrawal violated the bank’s policy.
. 11/6/02 N.T. (II) 30, 65-66.
. 11/6/02 N.T. (II) 74-75.
. 11/6/02 N.T. 111.
.11/6/02 N.T. (I) 1.12-116; P-62. The checks ranged from $4,000 credit card fees to $40,000 paid to Mazzei’s son-in-law, Charles Katze. 11/6/02 N.T. (I) 114; P-62.
. See P-62.
. 11/6/02 N.T. (I) 116-19; P-62 at MS-106.
. 461 Pa. 52, 334 A.2d 628 (1975).
. 13 Fiduc. Rep. 2d 185, 187-88 (O.C. Montg. 1993). (emphasis added)
. Respondents’ first medical expert.
. The court interprets this “unofficial” diagnosis as a consequence of Dr. Renzi prescribing Aricept to decedent at a time when Aricept was approved by the F.D.A. only for the treatment of dementia.
. 11/5/02 N.T.(II) 75.
. P-31 at 6-7.
. P-29 at EST 59-61.
. P-30 at EST 93.
. Stearnes Will, 9 Fiduc. Rep. 2d 100 (O.C. Montg. 1989) (nursing home records written by disinterested parties and confirmed by testimony “overwhelming evidence” of weakened intellect); Volkhardt
. 11/4/02 N.T. 154.
.11/4/02N.T 154-65. Additionally, decedent’s long-time friend, Albert Johnson, also testified to drastic changes stating that, “[Decedent] started to lose his faculties and really act strange two or three years before he went into Cambridge home,” i.e. roughly 1997 or 1998. 11/4/02 N.T 124, 127. Additionally, decedent’s neighbor, Angelina Destra, also testified to decedent’s paranoia and antisocial behavior beginning in March 1999. 11/4/02 N.T. 90.
. For example, Mr. Johnson’s estimate that decedent started to lose his faculties in or around 1998 comports with Dr. Renzi’s March 1998 Aricept prescription and December 1998 dementia diagnosis. Similarly, Ms. Rivera’s observations correspond directly with the Janu
. See P-65, P-66; 11/5/02 N.T. (II) 66-108; 11/5/02 (II) 1-85.
. 11/5/02 N.T. (II) 102-106.
. On the contrary, respondents’ first medical expert, Dr. Marc Rothman agreed with Dr. Streim’s conclusions that decedent suffered
. Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922); Clark, 461 Pa. at 63, 334 A.2d at 633. The Superior Court has affirmed that this is a disjunctive standard, i.e. that a party may show a confidential relationship by showing either overmastering influence or weakness, dependence or trust, justifiably reposed. Basile v. H & R Block Inc., 777 A.2d 95 (Pa. Super. 2001), appeal denied, 569 Pa. 714, 806 A.2d 857 (2002).
. Estate of Keiper v. Moll, 308 Pa. Super. 82, 86, 454 A.2d 31, 33 (1982); Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 504-505, 556 A.2d 819, 825 (1989).
. In re Estate of Mihm, 345 Pa. Super. 1, 7, 497 A.2d 612, 615 (1985). (citations omitted)
. 8 Fiduc. Rep. 2d 370, 373, 375 (O.C. Chester 1988).
. 11/4/02 N.T. 44.
. 11/4/02 N.T. 44-45.
. 11/4/02 N.T. 0-61.
. See Dichter Will, 354 Pa. 444, 47 A.2d 691 (1946); McGuire v. Shubert, 722 A.2d 1087 (Pa. Super. 1998); accord In re Estate of LeVin, 419 Pa. Super. 89, 615 A.2d 38 (1992).
. In re Estate of Mihm, 345 Pa. Super. 1, 7, 497 A.2d 612, 615 (1985).
. 11/4/02 N.T. 203-206.
. 11/6/02 N.T. (II) 39-42. The court accepts Vento’s testimony as true over Mazzei’s conflicting testimony.
. See P-7. The prepositional distinction “to” not “for” suggests to the court that decedent believed Mazzei and Squitieri would safeguard his money, in life, and not necessarily receive it upon his death. Additionally, owing to the fact that decedent did not read the trust account agreement, P-8, P-7 is the only significant expression of decedent’s understanding of the account.
. For example, the customers complete a proxy form in favor of the bank’s board to vote in the customers’ best interests.
. P-9; P-9a. The document, bearing “Affidavit” in its title, requires a notary’s attestation. Mazzei admitted that her failure to obtain attestation violated the bank’s policy. 11/4/02 N.T. 81. The bank now claims that the attestation was only necessary if the affidavit was completed outside the bank. First this position is contradicted by the clear requirements on the document’s face. Second, the document is expressly entitled “Affidavit,” meaning taken under oath and notarized. Third, Mazzei acknowledged that the lack of attestation violated the bank’s policy. 11/4/02 N.T. 81. Had a notary been present, Mazzei and Squitieri could not have executed their scheme. Mazzei’s and Squitieri’s failure to pursue proper attestation according to the bank’s policy, bespeaks their intended isolation of decedent.
. P-25, which ordinarily would be pre-printed before the intended account holder signed it. 11/4/02 N.T. 52-54, 84. In this in
In fact, Mazzei admitted that decedent never read P-8, the trust account signature card, containing the ITF account’s terms and conditions. 11/4/02 N.T. 83; 11/6/02 N.T. (I) 100. According to Mazzei, the writing on P-8 was too small. 11/4/02 N.T. 83. Yet, the writing on both P-25, which decedent allegedly could read, and that of P-8, which allegedly was too small for decedent to read, were of a similar size. These inconsistencies lead the court to believe that decedent, in reality, never read the key documents that established the ITF account, that he was not informed of their meaning or their consequence, and that he relied upon Mazzei and Squitieri in creating the account.
. See P-7.
. The understanding that decedent intended to entrust his funds, merely into the care of Mazzei and Squitieri is supported by the fact that decedent provided Mazzei and Squitieri with his original passbook as caretakers, and that they responded by providing a duplicate passbook to decedent with which he could not conduct business.
. According to Paclcel and Poulin:
“There are many situations in which a party may offer evidence of the opposing party’s conduct as circumstantial evidence that the opposing party was conscious of... the weakness of his case. This evidence has generally been treated as relevant and, therefore, admissible. It should continue to be admissible under the Pennsylvania Rules of Evidence.” Pennsylvania Evidence (2d ed.) §265 (cited in Commonwealth v. Derby, 27 D.&C.4th 121 (York Cty. 1994) (suicide attempt admissible to prove consciousness of weakness of case)).
McCormick and Wigmore agree and provide concrete examples of admission by conduct. McCormick notes:
“As might be expected, wrongdoing by the party in connection with its case amounting to an obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices, the party is said to provide a basis for believing that he or she thinks the case is weak____Accordingly, the following are considered under this general category of admission by conduct:... hiding or transferring property in anticipation of judgment.” McCormick, Evidence §265 (4th ed. 1992).
Wigmore adds:
“The opponent’s conduct in taking precautions to prevent an apprehended injury may sometimes indicate a consciousness of wrong .... For example,... the conveyance of property, during litigation or just prior to it, may be evidence of the transferor’s consciousness that he ought to lose.” 2 Wigmore, Evidence §282 (Chadbourn Rev. 1979). (emphasis in original)
. Evidence Rule 404(b)(2) provides that:
“Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, prepara*327 tion, plan, knowledge, identity, or absences of mistake or accident.” Pa. R.E. 404(b)(3); see also, Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192 (1993) (evidence of other acts admissible in negligence action to show motive, intent, absence of mistake, common scheme, plan or design).
. The Presumption of Undue Influence and the Shifting Burden of Proof 18 Fiduc. Rep. 2d 348, 361, James Mannion (1998).
. Masciantonio Will, 392 Pa. 362, 141 A.2d 362 (1958).
. In part, Mazzei’s false testimony addressed such material issues as follows:
• on the first day of trial, Mazzei said that she observed no changes in decedent’s mental condition from 1998 through October 2000. 11/ 4/02 N.T. 49. The medical records, Albert Johnson’s testimony, Angelina Destra’s testimony, Roxanne Rivera’s testimony and expert medical testimony portray a man whose mental condition had deteriorated visibly and noticeably to lay observers. 11/5/02 N.T. (II) 106.
• expert testimony that on 21 September 2000, a date upon which Mazzei admits to have seen decedent, decedent was suffering from a “delirium” which would have been apparent to lay observers who saw decedent that day contradicts Mazzei’s testimony that she observed no changes in decedent’s condition. Subsequently, on 7 November 2002, Mazzei attempted to minimize her 21 September contact with decedent in testifying:
“He didn’t spend much time there. I remember he asked how the wedding was. I told him it was very nice. He asked me if I got drunk. And I told him, no. And that is about the extent of the conversation we had that day.”
But, Mazzei on 4 November 2002 testified that on 21 September 2000, she and decedent also discussed that decedent had been to St.
• Mazzei testified that decedent’s desire to switch his direct deposit coupled with the lost passbook triggered the ITF account’s creation. 11/4/02 N.T. 62. Mazzei said that she could not set up direct deposit on an account for which no passbook existed. 11/4/02 N.T. 62-63. Yet Vento, banking expert William Wagenmann, and even Mazzei agreed that direct deposit required merely an account number and a bank routing number. 11/4/02 N.T. 62-63, 11/5/02 N.T. (I) 70-71.
• Mazzei claimed that she told decedent that Vento suggested that decedent speak with an attorney. 11/4/02 N.T. 72-73. Yet, Mazzei and Vento testified that Vento made the suggestion during the 8 August conference call. Mazzei claims that she was holding the phone to her ear and that she was not covering the transmitter when she relayed the suggestion to decedent. 11/4/02 N.T. 72-73; 11/6/02 N.T. (I) 199-200. Vento said that he did not hear Mazzei relay the suggestion, and confirmed his and Corrato’s deposition testimony that their own conversation with Mazzei was continuous. 11/6/02 N.T. (I) 200-201. See Rule of Civil Procedure 4020(a)(2)-(3) for admissibility and usage of deposition testimony, and Evidence Rule 803(25) governing “admissions” which requires that the party’s statement be made either in an individual or representative capacity or a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
• Mazzei testified that there was no duplicate-passbook, i.e. that only one passbook existed for the ITF account. 11/4/02 N.T. 207-208. Squitieri confirmed that she created a duplicate passbook. 11/7/02 N.T. 102.
• Mazzei’s testimony clearly implied that she did not know whether decedent had given Squitieri a gold ring. 11/4/02 N.T. 278. Squitieri testified that Mazzei knew about the ring. 11/7/02 N.T. 110.
• Mazzei testified that she and Squitieri handwrote the consumer account agreement because the computer printer was jammed. -11/4/ 02 N.T. 86. However, Mazzei could not provide any repair record to support such claim.
• confronted with the 14 November entry reflecting the social security deposit, Mazzei said that “we knew [decedent] wasn’t coming in ... because he was in the nursing home or in Cambridge.” 11/4/02 N.T. 242-43. Moments later, Mazzei admitted that “on the 14th [she] didn’t know [decedent] wasn’t coming in ... I knew it on the 16th.” 11/4/02 N.T. 243. Eventually, Mazzei admitted that her stated reasons for conducting transactions in decedent’s absence were not true. 11/6/ 02 N.T. (I) 106.
• Mazzei testified that she did not know decedent had living family. 11/4/02 N.T. 47. Yet, Vento testified that on 8 August, Mazzei referred to a niece living in New Jersey. 11/6/02 N.T. (II) 39-42. Corrato’s deposition testimony affirms this. 11/4/02 N.T. 48-49. Further, Mazzei’s and Squitieri’s use of eight accounts to launder money indicates that she and Squitieri were trying to make things difficult for any other persons, i.e. relatives, who might eventually discover and seek to trace the account proceeds.
. Squitieri testified for significantly less time than did Mazzei, but her misrepresentations and contradictions are no less significant:
• Squitieri claimed in deposition that she had no role in opening the ITF account or in completing the consumer account agreement. 11/7/ 02 N.T. 36-39. Then, confronted with the handwritten consumer account agreement, P-25, she admitted it was her handwriting. 11/7/02 N.T. 38-39; see also, 11/4/02 N.T. 84-85.
• Squitieri affirmed at trial the deposition testimony that Squitieri claimed she had no role in setting up the social security direct deposit on the ITF account. 11/7/02 N.T. 41. She then conceded that P-26, the direct deposit form, bore her signature. 11/7/02 N.T. 41-42.
. Underwood v. Pittsburgh Railways Co., 238 Pa. 332, 86 A. 184 (1913); Commonwealth v. Sisco, 484 Pa. 85, 89, 398 A.2d 955, 957 (1979); Burns v. Pepsi-Cola Metropolitan Bottling Co., 353 Pa. Super. 571, 510 A.2d 810 (1986).
. 11/6/02 N.T. (II) 152-53.
. 11/6/02 N.T. (II) 156-57.
. 11/6/02 N.T. (II) 160.
. 1/28/03 N.T. 15-16.
. 1/28/03 N.T. 19-20.
. 1/28/03 N.T. 19.
. 1/28/03 N.T. 9.
. 1/28/03 N.T. 16-17.
. 1/28/03 N.T. 9.
. 1/28/03 N.T. 18.
. 1/28/03 N.T. 23. Mr. Perpiglia only saw decedent exchanging greetings with elderly bank patrons. 1/28/03 N.T. 22.
. 1/28/03 N.T. 20-21.
. The annotation of “normal” pertaining to decedent’s mental condition appearing in the St. Agnes medical records for 16 September 2000 is an uncorroborated conclusion, especially when considered in conjunction with the testimony of Dr. Streim, and Dr. Scola. Both Dr. Streim and Dr. Scola agree that emergency room examinations are not in-depth, and that systems reviews are designed to turn up only those problems that the patient reveals to the medical personnel. 11/5/02 N.T. (HI) 25-26; 1/28/03 N.T. 111. Finally, provided decedent was able to recall his name, and possibly his social security number, Ms. Giacobbe could retrieve all of the other information appearing in decedent’s chart from previous hospital records.
. During his 82-page cross-examination, Dr. Scola:
• admitted that he submitted his draft opinion to Mazzei and Squitieri’s counsel, and Mazzei and Squitieri’s counsel suggested that Dr. Scola remove from his report certain statements which favored the estate, 1/28/03 N.T. 59-61;
• relied greatly upon Mr. Perpiglia’s and Ms. Giacobbe’s statements because he viewed Mr. Perpiglia and Ms. Giacobbe as expert observers, 1/28/03 N.T 61-62, but admitted that he had never met either Mr. Perpiglia or Ms. Giacobbe, 1/28/03 N.T. 99; that he did not know how long Ms. Rivera and Mr. Johnson, witnesses whose statements he disregarded, knew and observed decedent; and that he did not include the observations of Dr. Renzi’s physician’s assistant, 1/28/03 N.T. 66-67;
• stated that decedent’s January 1998 forgetfulness complaints indicated a depression, not dementia, because dementia patients rarely complain about forgetfulness, but subsequently admitted that forgetfulness complaints are not uncommon in early stage dementia, which is exactly what decedent would have been suffering from when he complained of his forgetfulness, 1/28/03 N.T. 66-67;
• acknowledged that Dr. Renzi’s prescription of Aricept indicates that Dr. Renzi believed as early as March 1998 that decedent suffered from mild dementia; and that difficulties balancing a checkbook or paying bills, with the instrumental activities of daily living, recalling newly learned or complex information, taking medications on a consistent schedule, are consistent with a mild dementia, 1/28/03 N.T. 70-71;
• conceded a lack of insight and refusal of treatment for mental impairment are common in persons suffering from dementia, 1/28/03 N.T. 72;
• admitted that his report does not mention dramatic change in how frequently decedent visited both Prudential and Sharon Savings, 1/28/ 03 N.T. 73;
• acknowledged that he did not know that the average MMSE score for an 85-year-old was a 25, 1/28/03 N.T. 80-81;
• conceded that Carmen’s paranoia and inability to track finances comported with dementia, 1/28/03 N.T. 88-89;
• admitted that loss of brain tissue was not inconsistent with dementia, 1/28/03 N.T. 92;
• asserted that he assumed certain facts about Mr. Perpiglia’s encounter with decedent, including that Mr. Perpiglia “examined” decedent and that Mr. Perpiglia and decedent “debated” certain issues, 1/ 28/03 N.T. 110-12;
• asserted that decedent’s weight loss was a significant factor in why he believed decedent suffered from a depression, but agreed that the weight loss did not occur until September 1999, or nine months after decedent scored a 22 on the MMSE, 1/28/03 N.T. 94-97;
• admitted that he misstated Dr. Streim’s conclusions, 1/28/03 N.T. 114;
• acknowledged that current medical thinking views depression as an early harbinger of an actual dementia, and 1/28/03 N.T. 116-17, see also, P-75, P-76, P-77;
• conceded that decedent’s trips from his home to the bank and to Sharon Savings, St. Agnes, and Albert Johnson’s home did not involve any complex high level cognitive functioning. 1/28/03 N.T. 155-56; P-78.
The list of examples could go on indefinitely and yet prove no more valuable to this court in disproving undue influence, than had Dr. Scola not testified at all.
. A principal is liable to innocent third parties for the frauds, deceits, concealments, misrepresentations, torts, negligence and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them. Solomon v. Gibson, 419 Pa. Super. 284, 293, 615 A.2d 367, 371 (1992) quoting Aiello v. Ed Saxe Real Estate Inc., 508 Pa. 553, 559, 499 A.2d 282, 287 (1985). (emphasis added) The respondeat superior doctrine unquestionably applies to an undue influence claim. The doctrine applies to employee wrongdoing, regardless of whether it sounds in tort, contract, fraud, or equity.
. Costa v. Roxborough Memorial Hospital, 708 A.2d 490 (Pa. Super. 1998), appeal denied, 556 Pa. 691, 727 A.2d 1120 (1998), citing Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 107, 410 A.2d 1270 (1979).
. Id. at 493, citing Fitzgerald, 270 Pa. Super, at 107, 410 A.2d at 1272 and Restatement (Second) of Agency, §228.
. The facts of this case do not implicate the use of physical force and it is unnecessary to show use of force to establish an employer’s vicarious liability.
. Davis v. Clear Lake Lumber Inc., 6 D.&C.4th 67, 68 (Warren Cty. 1989).
. Cooper v. Franko, 28 D.&C.4th 44, 78 (Phila. Cty. 1996).
. See Travelers Casualty & Surety Co. v. Castegnaro, 565 Pa. 245, 772 A.2d 456 (2001) (employer liable for acts of agent who fraudu
. R.A. v. First Church of Christ, 748 A.2d 692, 697 (Pa. Super. 2000), citing Restatement (Second) of Agency §213 (1958).
. 11/4/02 N.T. 35, 40, 42; 11/6/02 N.T. (II) 10.
. For example:
• The lost passbook affidavit requires notary attestation. See P-9a. No written policy exceptions exist. Yet, Mazzei stated that the bank routinely does not insist on a notary;
• The bank passbooks state that a Prudential customer present a passbook before making a withdrawal. P-11 at PR000063, 64, 65. No written policy exceptions exist. Yet, the bank frequently allows customers to make withdrawals without a passbook;
• The bank’s written policy requires management approval of all withdrawals over $500, whether made by check or cash. P-19 at PR000025, ¶5. Yet, the bank representatives claim that policy has been modified to $1,000. Yet, no written document supports this assertion.
. For example, they knew that internal j ournal debits over $ 1,000 would not trigger the approval requirement for withdrawals, whereas
. “Q. Are you saying that in the original conversation with [Mazzei] you suggested that [Vice President of Branch Operations] Maria Botta handle the account?
“A. I believe so. It was at that conversation or a subsequent conversation that I suggested the transaction be handled by someone else. Whether I mentioned Lucy Cohen or another officer or Maria Botta, I don’t remember which one I suggested. But I knew it shouldn’t be done by [Mazzei and Squitieri].
“Q. You do agree the two of them alone should not handle that account?
“A. Malee the transfer to a trust?
“Q. Make the transfer to the trust and create the documents by which the account was established and by which they were named account beneficiaries?
“A. Right.
“Q. Better practice would have be[en to have had] someone else do it?
“A. Yes.
“Q. Because that was you ensure the integrity of the transaction.
“A. Yes.” 11/6/02 N.T. (II) 52-53.
. In marked contrast, when decedent expired, Botta did travel the six blocks to ensure that the funds were properly transferred to Mazzei and Squitieri.
.11/5/02 N.T. (I) 65-66. To comport with reasonable standards, the bank should have:
• investigated the transaction and the nature of Mazzei’s and Squitieri’s relationship with decedent;
• assured itself that Mazzei and Squitieri had not unduly influenced decedent;
• confirmed decedent’s mental competency;
• confirmed decedent’s intent;
• confirmed decedent’s understanding;
• delayed the transaction, if it had any concerns regarding decedent’s mental ability, intent, or understanding;
• had someone other than Mazzei and Squitieri open the ITF account. 11/5/02 N.T. (I) 65-70, 78-80, 88-89. The bank did none of these.
.11/5/02 N.T. (I) 72. Similarly, the bank failed to detect that the lost passbook affidavit, P-9a, was not notarized. The bank’s counsel knew about but took no real steps to investigate the transaction.
. 11/5/02 N.T. (I) 73.
. See Heller v. Patwil Homes Inc., 713 A.2d 105 (Pa. Super. 1998) (home sales company negligently supervised manager who used office to convince potential buyers to invest in side ventures; employer should have known what manager was doing in office).
. 1/9/03 N.T. 61.
. 1/9/03 N.T. 55, 58.
. 1/9/03 N.T. 83-84.
. This court understands that exclusive of funeral expenses, taxes, and decedent’s debts, the ITF proceeds should have amounted to $563,767. As of 24 September, only $408,000 remained at the bank. Thus Mazzei and Squitieri moved roughly $156,000 through, and out of the bank before 24 September 2000.