*1
157
Scranton, Appeals
City
Zoning
Board
(1983).
405,
I am Appellant of the use to establish abandonment failed the Common- the order of agree majority with be reversed. wealth Court MOSER, Estate
Ann C. Administratrix deceased, Jr., Appellant, of John
v. DeSETTA, Appellee. Helen Pennsylvania. Supreme Court Argued March 1991. April Decided *2 Bowlen, Uniontown, Thomas A. for appellant. Cicconi, Uniontown, appellee.
Ricardo J. NIX, C.J., LARSEN, FLAHERTY, Before McDERMOTT, ZAPPALA, CAPPY, *3 and PAPADAKOS JJ.
OPINION OF THE COURT FLAHERTY, Justice. allowance,
This is an
a
appeal, by
from memorandum
and order
affirmed an
opinion
Superior
of the
Court which
order of the
Fayette County
Court of Common Pleas of
of
upholding
validity
ownership
of a transfer
a
660,
Pa.Super.
certain bank account 392
The Ann is the for the C. administratrix husband, Moser, estate of her late Mr. Mrs. John Jr. and Moser married in 1948. Mr. Moser as coal were worked a miner until his retirement. The Mosers had any never children, and, 1985, as of had accumulated approximately $115,000 in savings. lifetime In March of he when nearly seventy-eight years age, of Mr. Moser was diagnosed as being afflicted with cerebral arteriosclerosis. this physician diagnosis who made observed that Mr.
Moser suffering confusion, loss, from memory and other symptoms senility. Mr. Moser did not know his name, age, actions, own surroundings, or and did not know time, date, etc. The physician believed that Mr. Moser to take was unable care of his own affairs and advised him to into a boarding nursing move home or home. He contin- reside, however, ued to in his own home with his wife. According Moser, to Mrs. her recognize husband did not her at all during spring, summer, and fall of 1985. She him repeatedly falling described as becoming down very violent towards her.
Early August sisters, 1985 one of Mr. Moser’s Helen DeSetta, herein, appellee came to from Pennsylvania thereafter, Florida to visit her family. Shortly Mr. Moser told DeSetta that he to wanted use his lifetime to start a new business. DeSetta claims that she discouraged him from pursuing this idea. 24, 1985, August Moser,
Between Mr. accompa- DeSetta, nied by visited an discuss divorce laws and powers attorney. Mr. Moser then concluded that he did not grounds pursue have August divorce. On Mr. again accompanied DeSetta, went to office attorney’s general and executed a power attorney giving DeSetta authority manage his affairs. In the opinion Mr. Moser attorney, appeared lucid and did not have difficulty understanding what was said regarding the divorce laws of attorney. 4, 1985,
On September DeSetta took Mr. Moser to the *4 Gallatin Bank and assisted in placing Mosers’ funds into Treasury registered bills in jointly the names of Mr. and Mrs. later, 9, 1985, Moser. Several on days September Mr. Moser moved out of his home and into the residence of one sisters, of his other Ethel Moser. The was accom- move plished DeSetta, who, with the assistance of during her visit in Pennsylvania, staying at the Ethel Moser residence. 16, 1985,
On September took DeSetta Mr. Moser to meet Mrs. Moser at the Gallatin Bank. Mr. acting and his power attorney, wife through himself and not funds, transferred their documents which executed certain $115,000, checking account wit, into a approximately Moser and Ethel Moser. Mrs. the names of Mr. bearing husband, in her late seventies Moser, who, her was then like her she did not understand that age, in now claims that to Ethel Moser. being in the funds was transferred interest hospi- to a took Mr. Moser DeSetta On October he of a stom- complaining room because was emergency tal him who examined problem. physician ach arterioscle- having cerebral diagnosed same one that Mr. of the opinion physician, of 1985. rosis March from this condition suffering still clearly Moser was disoriented and was quite 1985. Mr. Moser was October of examined at the loss when he was suffering memory from age his or the he did not remember hospital. example, For to the brought him to problem that caused nature that Mr. Moser physician room. The believed emergency He affairs. managing his own incapable continued to be that, preceding in the months opinion later formed an capable examination, Mr. Moser would not have been reading property, or overseeing money his own of attor- such as the understanding legal documents August on ney executed 1, 1985, Moser entered into Mr. and Mrs.
On November Fayette Pleas of in the of Common consent order Court Moser, through Mr. required consent order County. The DeSetta, one-half of to his wife attorney-in-fact pay had estab- checking in the account that been the balance Hence, Mr. Moser himself and Ethel Moser. lished between $58,000, being such required pay approximately that had transferred one-half of the amount been roughly the transaction at question through the account in into 16, 1985. The consent order Bank on Gallatin each other Mr. and Mrs. Moser released provided also specified but support, from all duties of maintenance retire- continue to receive health and that Mrs. Moser would plan. miner pension under Mr. Moser’s coal ment benefits *5 162
Further, complaint agreed Mrs. Moser withdraw which seeking support. parties agreed had filed The also remaining of assets. negotiate a settlement of all their time, in or early Around the same late October Novem- ber, 1985, from the residence of Mr. Moser was moved nursing during Ethel to a home. DeSetta claims that Moser fall of 1985 Mr. Moser had at all times remained nursing to the home was neces- coherent and that move state, of his mental rather to facilitate sary, because but being nursing her return to Florida. Before moved to the home, life policies Mr. Moser amended his insurance 13, 1986, designate beneficiary. January as the On DeSetta thereafter, the check- pneumonia. Mr. Moser died of Soon that had in his and Ethel Moser’s names ing account been ownership to the of and Ethel Moser. changed DeSetta 1986, in present Mrs. Moser instituted action alia, seeking, inter to set aside the transfer of funds equity that occurred at the Bank on Gallatin Superior The of Pleas denied relief. The Court Common Court affirmed. in appellate review a case such as scope Feinman, v. in Sack quite
this is limited. As stated 489 Pa. 152, 165-66, (1980), “[n]ormally, appel 1066 late matters is limited to a determination equity review the chancellor committed an error of law or whether A equity abused his discretion.” final decree will unless it is the evidence or de unsupported by disturbed Id. Further, monstrably capricious. test is not “[t]he we, court, appellate whether would have reached the acting hearing judge same result had we been as the who ‘ witnesses, saw and heard the rather whether a judi “but mind, evidence, whole, cial on due consideration of the as a could have reached the conclusion of the chan reasonably Will, 362, 367, Masciantonio cellor” ’.” 392 Pa. A.2d (1958) (citation omitted). alleged Mrs. Moser claims that DeSetta abused an relationship receiving confidential with Mr. Moser from benefit, i.e., interest the bank an him a substantial generally Estate influence. See account, through undue *6 (1979). claim 98, 103 This 322, 332, 399 A.2d 484 Pa. Shelly, demonstrates plainly The record merit. is without in the interest from Mr. Moser an not receive DeSetta did Mr. Moser’s Indeed, it not until after was account. bank in the rights whatsoever any obtained death that DeSetta no Further, record contains account. bank understanding that funds to an pursuant acted that DeSetta Mr. Mos- transferred to her after would be in the account any does not contain evi simply The record er’s death. undue influence To conclude that of undue influence. dence court had The trial speculation. mere present would be of undue therefore, making finding a basis, ample influence. she fraudu Mrs. Moser that alleged by
It is also transfer of participate induced DeSetta lently by 16, 1985. We Bank on funds at the Gallatin record, however, find thoroughly reviewed have Hence, the trial is unsubstantiated. that the claim of fraud that fraud was established. properly court determined of any that fraud consists It is well established deceive, act or combi by single calculated to whether thing truth, is nation, suggestion or what by suppression or innuendo, or false, by by it direct falsehood by whether silence, mouth, gesture. or look or or word of speech Blank, 493 Pa. 137, 143, 412, (1981). 415 Frowen v. 425 A.2d misrepresenta is of a composed have held that We “[f]raud to induce the uttered with the intent fraudulently tion it, of its upon damage in reliance to the action undertaken Seaman, 451 Pa. 347, 350, 304 A.2d victim.” Thomas v. 134, (1973). of a material fact can 137 The concealment misrepresentation no less than does an culpable amount to a false statement. Commonwealth v. Monumen intentional Inc., 459 Pa. 450, 484, 812, 829 329 A.2d Properties, tal Nevertheless, (1974). alleging fraud has burden party evidence. convincing the same clear and proving (1980). Estate Pa. of Bosico, The record contains no evidence whatsoever that DeSetta any misrepresentation made sort to Mrs. Moser regard- the transaction ing at the Gallatin Bank. Even Mrs. Mos- er’s own does not testimony give any indication of how might have been or misled. There simply deceived is noth- ing to indicate that DeSetta or anyone else said or did anything to deceive Mrs. Moser. indicates, most,
The record at that Mrs. Moser may not have understood the full effect of the transaction at the fully Gallatin Bank. Not understanding transaction is not, however, clearly the same being defrauded. Mrs. Moser’s testimony reveals that she in her late seventies at the age transaction, time of the and that she is at times rather confused. Her testimony is unclear as to whether she signing knew before the documents at *7 bank that funds thereby would be transferred to Ethel Nevertheless, Moser. nothing in her testimony indicates that DeSetta made any misrepresentations to her.1 Fur- following excerpts 1. The testimony: are from Mrs. Moser’s Q. you go Were sign asked to down to the Gallatin Bank and some notes, papers? documents or A. I don’t remember. Q. only asking your I’m for the best of recollection? just good happened any A. I'm not in health. I don’t remember what more____ Q. this, you you give any Let me ask Mrs. Moser. Did ever intend to part of this one hundred and fifteen thousand dollars to Ethel Moser? Well, Bank, signing A. she—whenever we were in the Gallatin I thought signing money, I was John’s name so he would have the opened going get then she fifty her mouth and said Ethel was to Well, nobody help thousand. it was too late. I didn’t have to me or anything like that. Q. thought you transferring money, you You were but didn’t know it going to Ethel? Absolutely. A. Q. Bank, says, says says It Gallatin and then it is handwritten. It —it amount, $111,065.32 deposit Cashier’s Check No. 074845 for this to Moser, Jr., Checking Account John or Ethel and then that, you underneath Ann C. Moser. Do recall— there, signing something A. I recall and when she hollered and said power attorney that she going give had the that John was to Ethel fifty thousand dollars. Q. signing And so it you was the time of this that recall Helen saying DeSetta that? right. A. That’s Q. fifty you you giving Moser thousand Did realize were Ethel you signed this? dollars when it, No, thought signing my God I was name so John would have A. I happen anything me. forbid would to Q. day sign away your your to interest in those It was intention that accounts? Yes, figured way, money I it was his and he A. because this that, everything like but she had the earned it and and— Q. already your money names. You went there both of day to do what? trying A. To I don’t know what —what she was Q. to do. you you doing? What did understand were A. I didn’t understand too much of it. Q. you signed you when went to the bank and these Did understand longer point your documents that at that in time name was no on that money?
A. It was. Q. You understood that? my I On his name wasn't on it. It was his A. understood that. share sister, Ethel, put put on. She her name on it. Q. supposed happen you What was to after did that? Well, thought maybe everything right. A. would be all Q. understanding you signed you Your when these documents supposed get supposed get were half he was to half? sure, Why really every penny. A. because we saved Q. you supposed happen Let me ask this then. What was with his half? sister, gave A. He Q. it to his Ethel. sister, day going give You understood that he was it to his Ethel? *8 A. I know until she didn’t said. Q. Until who said? A. His sister said. Q. Which sister?
A. Helen. Q. She said what? going get fifty A. That Ethel was to thousand. Q. point going get fifty to You understood at that in time Ethel thousand? time, figured way they A. Q. wanted it. At that that was okay you? It was with okay A. It was with me. Q. you signed. And signed A. I that. explained to ther, fully that the transaction was testimony provided by Mrs. Moser was DeSetta.2 signed if Moser unfortunate Mrs. It indeed be would the conse- comprehending fully her interest without away however, record, demonstrates her actions. The quences of that she lacked a full possibility more than a nothing falls far short of what understanding of the transaction and basis, find no proof of fraud. We required would therefore, the chancellor’s determination to overturn not established. fraud was that her lacked the alleges Mrs. Moser husband
Finally, to Ethel gift to make a his capacity mental generally 1985. See Sobel v. Moser on (1969) (mental 80, 82-83, 649, 651 Sobel, Pa. Q. your understanding you my question. were Just answer Was money, money, going going half the John was to have half the to have give money going to Ethel? Is that what John was half of you understood? That is what I understood. A. Yes. Q. give you half of did understand that John’s intentions were But money to Ethel? Yeah, A. but not that much. Q. How much? A. It was too late. Q. you then? How much did understand? What did—how much I don’t know. A. Q. you signed papers, people from the bank When those were there there? Yes, A. two women were there. Q. they you papers explain what those meant? Did they sign my on them. think said I have to name A. I Q. you import they explained to what the You don’t recollect if papers were? the intent of those A. No. Q. You don’t remember? A. I don’t remember.
2. DeSetta testified as follows: Q. Ann was there? came, willingly signed. people at the bank A. ... She said, explained signing She if that is to her that she is over her share. it, it, way way he can have and I even said to the her, Ann, he wants that is the it, said, you going and she don't to do it. She I’m to do have signed. *9 competency gift). to make a She further alleges that the trial making court erred any finding as to whether competent her husband was on that date.
The trial solely court focused on the power of executed by August 30, 1985, Mr. Moser on and held that Mr. Moser then competent. reaching that determi- nation the testimony the attorney prepared who power of attorney, lucid, who said that Mr. Moser appeared was viewed the trial persuasive court as more than the testimony of the physician who testified that Mr. Moser was mentally incapable of managing his affairs. It was rea- weight soned that more given should be regard- ing Mr. Moser’s condition on the he day executed the document than to the testimony of a physician who exam- ined five months before and six power weeks after the of attorney was executed. Compare Will, Masciantonio 381-88, 392 Pa. at (opinions at 372-75 of physi- cians who were not present document, at the execution of a but who observed the scrivener quite near the time of execution, should regarded being of the same quality as testimony of witnesses present who were when the executed). document was
Although a determination of whether the power of attorney was valid may have been necessary to resolve other claims raised by Mrs. it was plainly determinative as to whether Mr. Moser was competent seventeen days after the of attorney executed, i.e., when the transaction at the Gallatin Bank occurred on 1985. Both parties concede that the power of attorney was not used in transaction, and that Mr. Moser acted in his own behalf on that date. A remand to the Court of Common therefore, Pleas is necessary, so that the crucial factual issue of on competency the date in question can be resolved.
We are in agreement, therefore, with the determination of the courts below that Mrs. Moser is not entitled to invalidate the bank account transfer on the basis of alleged undue influence and fraud. The issue of Mr. Moser’s *10 must, however, 16, 1985 be re-
competency September on trial court. by solved the in and case Superior part, of Court affirmed
Order the of Pleas. remanded the Court Common J., PAPADAKOS, concurs in the result.
LARSEN, J., dissenting opinion. files a LARSEN, Justice, dissenting. decedent, issue this is whether the by appeal
The raised a in of Jr., gift made valid John into savings he his and his wife’s life a transferred when and name of bearing his name the one joint account that the showed his sisters. Because believe of by to undue influence a subject that the decedent was in a at relationship who confidential with person was transfer, I find that no valid the time he made the there was therefore, I vigorously and dissent. gift, Commonwealth, of a rule in this the burden general As gift that of not a rests on property a transfer was proving Estate, asserting. so 449 Pa. party the Dzierski (1972). general principle apply, A.2d 716 This does other, however, or parties the relation of the to each “where transaction, in is some vicious element connection with the or compels recipient bequest that the such law free, intelligent to show it was the gift voluntary at A.2d Id., it.” 449 Pa. at person giving act relationship of a confidential shifts the existence can where the “circum- proof, be shown burden equal do deal on parties make it certain the stances but, terms, one there is an overmastering on the side other, weakness, trust, influence, or, dependence or on the Id. justifiably reposed.” in case, emergency
In this the decedent was seen Hospital his in family physician room of Brownsville time, decedent, seventy- nearly March 1985. At old, disoriented, found confused eight years to be time, i.e., was, date, he his age, he did not know who doing. and what he was He was in a weakened physical diag- condition and could not control his He bowels. suffering nosed as from transient ischemic cerebral attack and cerebral arteriosclerosis resulting syn- chronic brain drome (senility), conditions which are not reversible. When discharged he was after five in the he days hospital, walk, better able to but there improvement was no mental abilities. later,
Approximately sister, five months the decedent’s DeSetta, appellee, Helen returned to Pennsylvania, from Florida, her home in and immediately assumed control of the decedent’s life and financial affairs. took Appellee decedent to the office of her sign *11 appointed appellee that attorney-in- decedent’s Appellee fact. directed the purchase decedent to treasury bills with the wife, substantial sums of cash that he his and herein, appellant had saved during years the of their mar- riage. Appellee removed decedent from the home that he had shared appellant with the for thirty-seven years, and moved into the in family appellee home which was then staying with Appellee another sister. arranged the bills to treasury be transferred into a joint savings account bearing the names of the decedent and this other sister for appellee whom also served as attorney-in-fact.1 Appellee moved the decedent into a nursing home when he became too sick to be cared for in her home.2 And appellee took control of the decedent’s pension benefits and insurance policies, arranging for change decedent to the named bene- appellee 1. The fact attorney-in-fact that was the for the sister who joint savings became the owner of the decedent’s account is evidence appellee that did receive a benefit from this transfer. Thus Mr. Flaherty, writing majority, Justice stating for the is mistaken in that "DeSetta did not receive from Mr. Moser an interest in the bank Maj. op. account.” at 163. Flaherty, writing 2. Mr. Justice majority, for the states that the move to nursing the “necessary, home was not because of mental [decedent’s] state, [appellee’s] but rather to Maj. op. facilitate return to Florida.” simply at 681. This is According appellee’s not true. own testimo- ny, placed ill, personal she him in a care home after he became and she knew she would not be able to take him to Florida with her as she planned. Reproduced had Record at 118a. policies from his wife to Immedi- appellee. on those ficiary away, the substituted passed appellee after decedent ately joint name for on the account. her sum, period, a one month was able to appellee, In within marital and to thirty-seven relationship as year sunder a total an ailing, exercise control over sume and absolute interests, financial personal man’s which inter senile appellant’s light included share marital assets. ests of a overwhelming relationship, of this confidential prove the appellee gift the shifted to the burden decedent, act” “free, voluntary intelligent of the direct, convincing evidence. Donsavage clear, precise and Estate, (1966). appellee Pa. The did any to the competency not evidence as decedent’s present gift on that the day to make transfer decedent’s joint savings into the account occurred assets Thus, the decedent appellee prove of 1985. did gift made the to undue influence at time he subject gift not sustain her that the proving and did burden giving appellee is a second bite of majority valid.3 opportu case and her the apple remanding giving prove what failed to she had the nity prove when doing burden of so. order of
Accordingly, dissent and would reverse the Court which affirmed the order of the Court of Superior Pleas of Fayette County. Common *12 Moreover, clearly I find of this establish the facts case the appellant, amounting the concealment material facts from fraud. testimony majority opinion clearly set forth in the indicates convincingly appellant know had did not until transfer- after sister, couple's red her interest the life that the decedent’s attorney-in-fact appellee, getting would a share of whose those op. Maj. Appellee assets. at 164-166 n. 1. did not contradict this during hearing light when she matter. testified in this confusion, age, savvy, appellant’s and lack it of financial upon appellee explain its incumbent transaction and conse- manner, ensuring quences complete in a full that all of appellant appellant circumstances were before the understood signed her name to relevant This was documents. done. Hence, disagree majority’s finding was no with the that there fraud herein.