Patricia Gasper brought an equity action as guardian for her incompetent father, Walter Weir, now deceased, to set aside two real estate transfers which Weir made to his son-in-law, Aventino Ciao. The trial court denied relief and she appeals.
She asserts the trial court erred in (1) not finding a confidential relationship bétween Weir and Ciao, (2) refusing to consider after-discovered evidence, and (3) finding Weir competent at the time of the transfers. Since we find no prejudicial error of law or abuse of discretion, we affirm.
The factual background of the case is essential to an understanding of it. Ciao had lived in the Weir home for many years. He was the husband of Weir’s deceased daughter. The couple had lived with Weir and his late wife for approximately ten years. Ciao continued to live with Weir even after the death of his wife and the death of his mother-in-law. Weir and Ciao developed a close personal relationship. In 1977, Gasper asked Ciao to leave her father’s home, which he did. Gasper and her husband then moved in and cared for Weir.
Weir also owned a vacation home in Wildwood, New Jersey. Originally Gasper and her sister, Ciao’s deceased wife, inherited this property from their grandfather. When Ciao’s wife died, his wife’s one-half interest in the property passed to him. Within a month of her death in 1975, Ciao responded to Gasper’s insistence and joined her in gratuitously deeding title to the property to Weir and his wife. After Mrs. Weir died, her interest passed to her husband.
From 1977, when Ciao left the Weir home, through 1981, he and Weir continued to see each other regularly. In Fall 1981, Weir asked Ciao to take him to a lawyer because he wanted to settle his affairs. Ciao took Weir to see Neil Leibman, an attorney who had once advised Ciao against legal action to revoke his gift of the Wildwood property to the Weirs. After Weir conferred alone with Leibman, Leib-man drafted a will for him and prepared the two deeds, transferring title to the Weir residence to Weir and Ciao as
In Spring 1982, Gasper discovered these transfers. Gas-per’s brother, Weir’s son, then filed a petition to have Weir declared incompetent. The orphans’ court determined he was incompetent on July 12, 1982, and appointed Gasper his guardian. She then brought the instant action to set aside the real estate transfers which occurred before Weir was declared incompetent. She bases her request on Weir’s incompetency.
I.
Appellant asserts that a confidential relationship existed between Ciao and Weir. Ciao argues it is improper for this court on appeal to consider the issue of a confidential relationship because the issue was not pleaded and was therefore waived. Although we find the issue was adequately pleaded so as to provide notice to Ciao, we nevertheless find the issue waived on other grounds. Appellant Gasper failed to assert the issue in her post-trial motions. “[OJnly issues specifically raised in post-[trial] motions can be considered and will be preserved for appeal, and issues raised only in briefs in support of those motions may not be considered.”
Cherry v. Willer,
II.
Appellant Gasper next argues that she is entitled to a new trial because she discovered additional evidence after trial in the form of a notarized document signed by Weir. The document, which is not in Weir’s handwriting, only states, “Under no circumstances is name to be changed from Walter Weir without his consent.”
As we noted in
Walters v, Kapiris,
Pa.R.C.P. 227.1(b), which provides that issues not raised in post-trial motions are waived, is not applicable to a request for a new trial based on after-acquired evidence discovered after post-trial motions were filed. In this type of situation, the preferable procedure is for appellant to petition to file supplemental post-trial motions and include therein a request for a new trial based on after-acquired evidence. Appellant’s failure to do so is not, however, fatal and we find the issue preserved.
Having concluded that the issue was not waived, we next consider whether the trial judge abused his discretion in refusing to consider the after-acquired evidence. The trial court has considerable discretion in deciding whether to consider the evidence.
See Korn v. Consolidated Rail Corp.,
From an examination of the record we conclude that appellant has satisfied each requirement of the test except the requirement that the after-acquired evidence is likely to compel a different result. In the case sub judice the meaning and significance of the after-acquired document is cryptic and unclear, and its probative value is thin. Therefore, we conclude that even if the court had considered the after-acquired evidence, the appellant would not have been granted a new trial. Appellant has failed to show she was prejudiced by the court’s error. Stokes v. Thiemann. Therefore, we do not grant a new trial.
III.
Appellant also argues that the court abused its discretion in finding Weir competent at the time of the transfers. The record reveals that appellant presented expert testimony of Dr. Leo Freeman, a psychiatrist, who in June 1982 first examined Weir. The examination occurred after the transfers of the real estate. Dr. Freeman had testified at Weir’s incompetency proceedings in July 1982. In the instant case, Dr. Freeman testified that Weir was suffering from Alzheimer’s disease, a degenerative organic brain syndrome, rendering him unable to perform usual mental functions. Dr. Freeman also testified that at the time of the transfers Weir was suffering from the disorder and that he was unable to function as a rational person. However, on
To counteract Dr. Freeman’s testimony, appellee called Neil Liebman, Weir’s attorney. Liebman had interviewed Weir before preparing the will and transfers. Liebman, testifying as a fact witness, noted that he questioned Weir before drafting the will to ascertain whether Weir was of sound mind, oriented, in touch with reality and able to understand the nature and dispositions of his property. Liebman testified as to his conversation with Weir and detailed the substance of the questions and answers. It appears that the trial judge, as the trier of fact, believed Liebman’s testimony and found it was not in conflict with Dr. Freeman’s concession that Weir had lucid moments. On that basis, the judge concluded that Weir was competent at the time of the transfers.
Appellant argues that the trial judge abused his discretion in accepting Liebman’s testimony on competency because he is a lawyer with no expertise in mental health matters. First, we note that observations of lay witnesses on the question of competency are admissible.
Girsh Trust,
We note that the principle in the Commonwealth is “the testimony of those who observed the speech and conduct of the person on that date [execution of the instrument whose
We cannot accept appellant’s contention that Leibman, a lay witness, is not competent to testify as to his own observations about Weir’s competency. The chancellor as fact-finder did not abuse his discretion in accepting Leib-man’s testimony and finding it credible.
Decree affirmed. Jurisdiction relinquished.
