¶ 1 Frances Mazzei, Lucia Squitieri, and Prudential Savings Bank, PaSA, (collectively “Prudential”) appeal the trial court’s order finalizing a decree nisi that held the defendants jointly and severally hable to the Estate of Carmen DiCesare for $563,767.40, together with interest and costs. The court determined that Mazzei and Squitieri had, while acting in the course and scope of their duties as bank employees, exercised undue influence over the decedent to cause him to name them as the sole beneficiaries of a bank account that contained the bulk of his assets. Accordingly, the court imposed liability on the bank under a theory of respondeat superior, and found the bank liable directly for negligent supervision. Prudential asserts that the court erred as a matter of law in determining the duty of care applicable to the bank’s conduct, and argues also that the evidence does not sustain the court’s findings. Upon review of the court’s painstaking findings and conclusions, we find Prudential’s assertions mer-itless and affirm the court’s order.
¶ 2 This matter arose out of a challenge by the decedent’s estate to the transfer to Mazzei and Squitieri of the balance of an account that the decedent held at Prudential Savings Bank. The account, of a type sometimes known as a “poor man’s will,” provided ostensibly that the principal was held by the decedent in trust for Mazzei and Squitieri as beneficiaries. Not coincidentally, Mazzei and Squitieri were the branch manager and assistant manager, respectively, of the bank’s branch at 19th and Snyder Streets in south Philadelphia where the decedent had opened the account. Both had participated in opening the account after Mazzei told the decedent, then 82 years old, that she could not process his request for direct deposit of his social security check into his passbook account because he had lost the passbook. Mazzei required accordingly that to obtain direct deposit the decedent open the new account (ITF account).
¶ 4 Following the decedent’s passing on June 13, 2001, the bank transferred $698,566.72 from the ITF account to a Prudential account titled to Mazzei and Squitieri. Over the following three months, Mazzei and Squitieri moved the money to other accounts at Prudential using journal debits, and ultimately withdrew the money. Because bank policy prohibited employees from handling transactions on their own accounts, each of the women would handle the other’s transfers. On September 24, 2001, two days after they learned that the decedent’s estate had retained counsel, Mazzei and Squitieri made their final withdrawals, removing a remaining total of $408,000. Again, each counter-signed the other’s withdrawal. Subsequently, Mazzei deposited her share of the money in her husband’s account at the Police Fire Credit Union and he, in turn, wrote a series of checks to various friends and neighbors averaging $9,000 each.
¶ 5 By decree dated December 28, 2001, the Register of Wills appointed Theresa Owens (the Administrator) administrator of the Estate of Carmen DiCesare. On January 8, 2002, the Administrator petitioned the Orphans’ Court for Citation to Show Cause Why Assets Should Not be Turned Over to the Estate. The Administrator sought the return of all sums paid to Mazzei and Squitieri from the ITF account, claiming that the two had obtained the money by exercise of undue influence. Additionally, the Administrator sought recovery from Prudential on theories of re-spondeat superior and negligent supervision, contending that Mazzei and Squitieri had acted within the course and scope of their duties with Prudential when they opened the ITF account, and that Prudential had failed, inter alia, to impose effective policies and procedures to prevent self-dealing by bank employees.
¶ 6 On April 23, 2002, following a hearing, the court ordered Mazzei and Squitieri to pay all remaining proceeds of the ITF account to Jerome R. Balka, Esquire, to be held in escrow pending final disposition of the Estate’s claim. However, Mazzei and Squitieri were able to remit only $156,000. Subsequently, in November 2002, the court commenced trial on the Estate’s claim for the remainder of the money. Following extensive testimony, including that of medical experts, as well as neighbors and caretakers who observed the decedent before and after the opening of the ITF account, the court concluded that the decedent suf
¶ 7 Concerning the Estate’s claims of negligent supervision, the court reached the conclusion that:
Negligence and inconsistency permeate the bank’s environment....
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. Both Mazzei and Squitieri exploited this procedurally liquid environment.... The Bank’s environment, and lack of meaningful controls proved fertile soil for the undue influence at issue.
Trial Court Opinion, 5/5/03, 34-35. Consequently, the court held the bank liable for negligent supervision. The court then entered the decree that all three defendants now appeal.
¶ 8 For purposes of appellate review, Mazzei and Squitieri have joined the brief filed by Prudential. Prudential raises the following questions for our review:
1.Did the Orphans’ Court err in finding that a confidential relationship existed between Frances Mazzei (“Mazzei”) and Lucia Squitieri (“Squitieri”), two employees of Prudential Savings Bank, PaSA (“Prudential”), and Carmen DiCesare (the “Decedent”), a bank customer, which enabled Mazzei and Squitieri to exercise undue influence over the Decedent?
2. Did the Orphans’ Court err in failing to find that the relationship between Prudential and Decedent was one of creditor and debtor which relationship imposes no fiduciary responsibility on Prudential with regard to the decedent’s account?
3. Did the Orphans’ Court err in holding that Prudential is vicariously liable for the alleged wrongful acts of its employees?
4. Did the Orphans’ Court err in finding that Prudential was negligent by: (a) complying with Decedent’s request to open an account in his name in trust for Mazzei and Squiti-eri; (b) supervising its employees with respect to opening this type of accounts [sic]; and (c) permitting disbursements of funds from Decedent’s account upon his death to the beneficiaries designated by Decedent?
5. Did the Orphans’ Court err in awarding attorneys’ fees and costs to the Decedent’s estate when there is no agreement or statute which provides for such a recovery and where the assessment of any such fees, interest and costs was subsequently denied by the Orphans’ Court?
Brief for Appellant at 2. Before proceeding, we observe that the argument appearing in Prudential’s appellate brief does not correspond with the order of the questions set out above. No designated section appears in Prudential’s argument addressing questions 2 and 5, and argument posited in support of question 1 appears to exceed the scope of the question presented. Consequently, we decline to consider questions 2 and 5, and will limit our review of Prudential’s remaining contentions to the
¶ 9 Our standard of review of the findings of an Orphans’ Court is deferential.
When reviewing a decree entered by the Orphans’ Court, this Court must determine whether the record is free from legal error and the court’s factual findings are supported by the evidence. Because the Orphans’ Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of [ ] discretion.
In re Estate of Harrison,
¶ 10 In support of its first claim, Prudential asserts that the Orphans’ Court erred in determining that Mazzei and Squitieri had exercised undue influence over decedent Carmen DiCesare when they superintended his creation of the ITF account and his subsequent transfer of assets into it. Brief for Appellant at 2. Prudential contends specifically that the evidence fails to establish that the decedent suffered a weakened intellect and fails to establish that the decedent relied upon Mazzei and Squitieri in any manner sufficient to create a legally cognizable confidential relationship. Brief for Appellant at 13, 18. Prudential argues that its relationship with the decedent was instead contractual in nature and that it owed him no special duty to prevent the acts that the trial court found Mazzei and Squitieri had committed. Brief for Appellant at 16. We find no merit in any of Prudential’s assertions.
¶ 11 “[U]ndue influence is a ‘subtle,’ ‘intangible’ and ‘illusive’ thing,” In re Estate of Clark,
¶ 12 In this case, Prudential does not appear to contest the trial court’s conclusion that Mazzei and Squitieri benefited substantially from their status as the beneficiaries of the ITF account. Indeed, the record demonstrates that they received the bulk of the decedent’s property, almost $600,000 in cash. Prudential does contest, however, the trial court’s companion findings that the decedent suffered from a weakened intellect and that he was engaged in a confidential relationship with Mazzei and Squitieri when he signed the account agreement that created the ITF account. Brief for Appellees at 13, 18. In
¶ 13 Our Supreme Court has cautioned that “weakened mentality as relevant to undue influence need not amount to testamentary incapacity.” Clark,
¶ 14 Upon review of the record and the comprehensive findings rendered by Judge O’Keefe, we find the court’s conclusion supported by compelling, indeed overwhelming, evidence that the decedent was in precipitous mental decline both before and after he opened the ITF account. Multiple witnesses, including the decedent’s treating physician, documented the decedent’s impairment many months before he opened the ITF account. Their recollections, which Judge O’Keefe properly weighed in his role as the finder of fact, offer a disconcerting portrayal of a man in the grip of dementia whose condition was apparent not only to professional observers but to anyone who had significant contact with him. Prudential’s argument to the contrary, which relies upon challenges to witness credibility, falls markedly short of demonstrating evidentiary insufficiency.
¶ 15 The decedent’s treating physician, Dr. Vincent Renzi, documented that in 1998 the decedent had come to his office complaining of forgetfulness, which did not subside following adjustment of his prescribed dosage of Flomax, a medication he took for prostatism. Thereafter, Dr. Ren-zi concluded that the decedent suffered from “progressive dementia” and prescribed Aricept, a drug approved only for the treatment of Alzheimer’s Disease. Notwithstanding his medication regimen,
¶ 16 The Estate’s medical expert, Dr. Joel Streim, testified further concerning the decedent’s performance on the MMSE and evaluated the decedent’s condition in light of medical records compiled during the decedent’s treatment as well as statements made by the decedent’s friends and neighbors. Concerning the MMSE, Streim explained that a score of 28 is average for a man of the decedent’s age, and that the decedent’s score of 22 in January 1999 was consistent with mild dementia. Streim explained further that patients suffering from dementia typically lose two to three performance points on the MMSE per year. He concluded accordingly that by the first half of 2000, the decedent likely suffered from moderate dementia that would have been “sufficiently apparent to most laypersons to raise concerns about his mental condition.” Report of Joel E. Streim, M.D., Exhibit P-66. Dr. Streim recounted further that, as little as six weeks after the decedent opened the ITF account, his MMSE score had declined to 2, and a CT scan of his head showed “brain atrophy with enlarged sul-ci” consistent with the progress of dementia over months or years. Report of Joel E. Streim, M.D., Exhibit P-66.
¶ 17 The Estate introduced additional testimony from lay witnesses whose recollection of the decedent’s appearance and demeanor confirmed Dr. Streim’s assessment of the decedent’s mental decline. Roxanne Rivera, the assistant manager of Sharon Savings, testified that between 1997 and 2000, the decedent had made monthly visits to Sharon Savings to conduct business. She observed further that during the early months of 2000, the decedent began to engage in erratic behavior, coming to the bank nearly every day and requiring that bank employees spend a significant amount of time explaining his finances and assuring him that his money was not being stolen. Rivera also noticed a change in his demeanor and appearance; he became “straggly” and unkempt and sometimes merely came into the bank and sat, interacting with no one. Rivera opined further that the decedent “wasn’t there. He wasn’t. His mental capacity was gone.” N.T., 11/4/02, at 159.
¶ 18 Multiple witnesses attested to subsequent occurrences during which the decedent was found wandering about the neighborhood in a state not entirely lucid. Approximately one month after he opened the ITF account, the decedent was escorted by a police officer to the home of a friend after the officer found him locked out of his home. That same month, on four occasions, the decedent wandered into St. Agnes Hospital confused and in need of care. Ultimately, he was admitted with a diagnosis of dementia but then left the hospital against medical advice. Three days later, on September 22, 2000, the decedent made his way to a local retirement home and sought admission. The home’s administrator, Florence Curley, remembered that the decedent was dirty and unkempt and told her that people were
¶ 19 Under similar circumstances we have found the evidence legally sufficient to establish “weakened intellect” and have affirmed the trial court’s finding of undue influence. See Estate of Lakatosh,
¶20 The evidence is equally sufficient to sustain the Orphans’ Court’s finding that Mazzei and Squitieri were engaged in a confidential relationship with the decedent. Our decisions provide extensive discussion on the nature of confidential relationships and the evidentiary thresholds necessary to establish their existence.
Our Supreme Court has acknowledged that “[t]he concept of a confidential relationship cannot be reduced to a cata-logue of specific circumstances, invariably falling to the left or right of a definitional line.” In re Estate of Scott,455 Pa. 429 ,316 A.2d 883 , 885 (1974). The Court has recognized, nonetheless, that “[t]he essence of-such a relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other.” Id. Accordingly, “[a confidential relationship] appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed[J” Frowen v. Blank,493 Pa. 137 ,425 A.2d 412 , 416-17 (1981) (emphasis added).
Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa.Super.2001). Recognizing a wide array of relationships that might create such a discrepancy, our courts have been circumspect in limiting the circumstances under which a confidential relationship might be deemed to arise. See Young v. Kaye,
¶ 21 Prudential appears to argue that the record in this case fails to establish the element of reliance implicit in the foregoing standards. Rather, Prudential asserts, “the evidence established that the relationship between Decedent and Prudential was nothing more than the kind of business relationship that one would expect between a small community bank and its customer.” Brief - for Appellant at 15. Prudential contends further that “[m]ere assistance in handling the details of business transactions does not give rise to an inference of confidentiality.” Brief for Appellant at 15 (citing In re Estate of Scott,
¶ 22 To the extent that Prudential’s argument addresses evidentiary sufficiency, we find it meritless. Initially, we note that the case on which Prudential places its principal reliance is readily distinguishable. Brief for Appellant at 14-16 (citing Scott,
¶ 23 Here, the evidence demonstrated that the decedent, in a state of precipitous mental decline, reposed extraordinary trust and reliance in Mazzei and Squitieri, wholly consistent with the formation of a confidential relationship. Indeed, that trust is effectively recorded in the document Mazzei prepared for the decedent to sign, which directed, “I WISH TO PUT THE ACCOUNT IN TRUST TO FRANCES MAZZEI AND LUCIA SQIIERI [sic].” (emphasis added). Mazzei acknowledged that the decedent sought her advice on financial matters, that she gave him advice routinely, and that, ultimately, he would allow only Mazzei or Squitieri to
¶ 24 Ultimately, Prudential attempts to argue that its witnesses disproved undue influence, a presumption of which arose upon the trial court’s finding of weakened intellect and confidential relationship. See Clark,
¶ 25 In support of its third question, Prudential asserts that the trial court erred in holding the defendant bank vicariously liable for the acts of its employees. Brief for Appellant at 34. Prudential argues that vicarious liability may be established only in accordance with section 213 of the Restatement of Agency “if all of the requirements of an action of tort for negligence exist.” Brief for Appellant at 34. We recognize that Restatement section 213 provides for imposition of vicarious liability only under limited circumstances. The
§ 213. Principal Does Not Intend Conduct Or Consequences
A person conducting an activity through servants or other agents is subject to liability:
(a) if he is negligent in the conduct of such activity; or
(b) if he permits his servants or other agents to act negligently upon his premises or with his instrumentalities.
RESTATEMENT AGENCY § 213. Nevertheless, Prudential’s discussion provides no cohesive analysis of the elements either of negligence or of section 213. Rather, it relies on summary conclusions concerning undue influence and the legal presumption in favor of testamentary disposition. These assertions are not sufficiently coherent to enable appellate review. Accordingly, we find no alternative but to deem the underlying issue waived. See Lakatosh,
¶ 26 Finally, in support of its fourth question, Prudential asserts that the trial court erred in finding the bank liable for negligence in supervising its employees. Brief for Appellant at 29. Prudential appears to argue that it cannot be found negligent on the evidence adduced because the Administrator failed to show that the bank violated any law, regulation, or written industry standard. Brief for Appellant at 31-33. Prudential argues in addition that our Supreme Court’s jurisprudence effectively applies a “one-bite” rule to employer control of employee misconduct, such that the employer must have “reason to know of the necessity ... for exercising control .... ” Brief for Appellant at 30 (quoting Hutchison v. Luddy,
¶ 27 We acknowledge that the rule in Hutchison is binding in those cases where the record supports its application. Nevertheless, we find no discussion in Prudential’s brief of how the record in this case demonstrates the rule’s applicability. Hutchison recognizes the precept outlined in the Restatement (Second) of Torts entitled “Duty of Master to Control Conduct of Servant.” See
¶ 28 In Hutchison, our Supreme Court applied the rule to define the potential liability of officials of a Roman Catholic diocese for the conduct of a priest who engaged in sexual activity with boys who attended his church or were members of his parish. See id. at 1053-54. Neither party disputed that such conduct was clearly outside the scope of employment of Roman Catholic clergy. In this case, by contrast, the activity of Mazzei and Squiti-eri that formed the basis for liability was demonstrably within their scope of employment; in point of fact, their employment allowed them to proceed undetected. In the absence of any substantial discussion by Prudential to show that such acts as the opening of new accounts and stewardship of funds were not within the course of its employees’ duties, we find no basis for application of the foregoing rule.
¶ 30 In addition, we find no merit in Prudential’s assertion that the Administrator’s failure to show that the Bank violated some law, regulation, or written industry standard should somehow insulate it from liability for negligence. Prudential’s further appeal to provisions of Pennsylvania’s Commercial and Banking Codes to demonstrate that it acted in accord with its statutory responsibilities is particularly wide of the mark. The Commercial Code defines a bank’s authority “to accept, pay or collect an item or to account for proceeds of its collection” in the event of the death or incapacity of its customer. 13 Pa.C.S. § 4405(a) (Death or incapacity of customer). The Banking Code makes similar provisions concerning jointly held accounts. See 7 Pa.C.S. § 604(b)(1). However, neither provision is even remotely relevant to the issue of whether Prudential acted negligently in super-vising its employees under the circumstances of this case. The trial court’s disposition was wholly unrelated to whether Prudential properly accepted, paid or collected an item. Nor did the court premise the liability of the bank on negligence in supervising employees in the way they carried out such tasks. Rather, as the trial court made amply clear, it premised liability on the fact that Prudential “negligently allowed the ITF Account to be created, and then negligently permitted Mazzei and Squitieri to dissipate assets.” Trial Court Opinion, 5/5/03, at 34. The courts’ findings and conclusions on this point are fully supported by the evidence and provide no basis for a claim of reversible error.
¶ 31 For the foregoing reasons, we conclude that Prudential is not entitled to relief on the claims it has asserted. Accordingly, we affirm the order of the Orphans’ Court.
¶ 32 Order AFFIRMED.