Estate of Max H. McComb

J-A09006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MAX H. MCCOMB, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA

v.

APPEAL OF: DANIEL R. ALEXANDER

No. 1087 WDA 2019

Appeal from the Order Entered June 18, 2019
In the Court of Common Pleas of Venango County
Orphans' Court at No(s): O.C.D. 2013-218

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 18, 2021

Appellant, Daniel R. Alexander, appeals from the June 18, 2019 order

directing the Venango County Register of Wills to revoke her order admitting

to probate the 2013 Will (the “2013 Will) of Max H. McComb (the “Decedent”).

Also before us is Appellant’s application either to substitute Marcia Alexander,

his surviving wife (“Marcia”), as Appellant or to proceed without substitution.

We affirm the Orphans’ Court’s order and grant the application to proceed

without substitution.

Appellant, formerly known as Lance McComb, is the only surviving

biological child of Decedent. Appellant was the sole heir under the 2013 Will,

executed on January 15, 2013 and probated on September 19, 2013. On

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* Retired Senior Judge assigned to the Superior Court.
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December 10, 2013, Malcolm Potter (“Malcolm”) and Pamela O’Neal

(“Pamela,” or collectively with Malcolm, “Petitioners”), Decedent’s

stepchildren by his second wife, Hazel Potter (“Hazel”), petitioned the

Orphans’ Court to set aside the 2013 Will as a product of Appellant’s undue

influence. Malcolm and Pamela each stood to inherit one-third of Decedent’s

estate, with the other third going to Appellant, under a will Decedent executed

in 2011 (the “2011 Will”). The 2011 Will replaced an earlier one, executed in

2009 (the “2009 Will”), under which Appellant was the sole heir.

The Orphans’ Court heard testimony on May 25, 2014, September 19

through September 22, 2017, and December 4, 6, and 7, 2017. The parties

then introduced their proposed findings of fact and conclusions of law. The

Orphans’ Court adopted Petitioners’ 288-paragraph proposed findings of fact

and 37 conclusions of law verbatim and entered the order before us. This

timely appeal followed.

In 2009, at the time of execution of the 2009 Will, Decedent was 84

years old, and Hazel was 88 years old. Hazel suffered from severe dementia,

and the couple employed full-time, live-in aides to assist in her care at the

couple’s home in Valhalla, New York (the “Valhalla Home”). Decedent and

Hazel lived at the Valhalla home during most of their 38-year marriage (they

were married in 1973), and Hazel and her first husband raised Petitioners

there. Hazel had been widowed for approximately 12 years prior to her

marriage to Decedent. Decedent also owned a house and 131-acre farm in

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Rouseville, Venango County, Pennsylvania (known as and referred to

hereinafter as the “Hood Farm”), where Decedent and his first wife raised

Appellant and another son who predeceased Appellant.

Decedent became sick and was hospitalized in August of 2011. Unable

to reach Appellant in California, Decedent appointed Pamela as his healthcare

proxy in place of Appellant. N.T., 9/19/17, at 28-29. Decedent suffered an

ischemic stroke, meaning the blood flow to his brain was inhibited but there

was no bleeding. Deposition of Andrew Lowe, M.D., 9/24/15, at 11.1

Decedent’s speech returned to normal thereafter, but he suffered some

cognitive deficits. Id. Dr. Lowe, an internist, had been Decedent’s treating

doctor for many years, and Decedent’s personality seemed intact to Dr. Lowe

afterwards. Id. at 13.

In September 2011, upon his return home from the hospital, Decedent

noticed unexplained transfers of money out of his Wells Fargo bank account.

N.T., 9/19/17, at 27, 30-31. The money went to Appellant, who had recently

asked Decedent for his account information in connection with a loan

application. Id. at 34; Deposition of Giovanni Grande, 9/21/15, at 42, 56,

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1 The parties introduced numerous depositions into evidence throughout the
proceedings in this matter. No evidentiary objections lodged during the
depositions or the various hearings in this matter have been argued on appeal.

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62, 64.2 The money was transferred to Appellant through an online transfer;

Decedent did his banking in person and never used online banking. Id. at 11.

Wells Fargo returned the funds to Decedent’s account less what Appellant had

spent. Id. at 11, 16. Initially, Decedent was furious about the transfers.

Deposition of Anne Penachio, 9/21/15, at 20.3 Decedent filed an affidavit of

fraud with Wells Fargo, but eventually decided he did not wish to press charges

against Appellant. N.T., 9/19/17, at 70. Grande Deposition, 9/21/15, at 12.

In any event, Decedent’s initial anger at Appellant prompted him to

execute the 2011 Will. In it, after providing for the care of Hazel if she

survived him, Decedent left the Valhalla Home to Petitioners, the Hood Farm

to Appellant, and the residue to Appellant, Malcolm, and Pamela in three equal

shares. Deposition of Robin Freimann, 9/21/15, at 9-10, 18, and Exhibit 7.

In early 2012, a group of Decedent’s former neighbors negotiated an oil

and gas lease for shale gas underneath the Hood Farm and neighboring

properties. N.T., 9/19/17, at 97-98, 108, 115. The resulting payout to

Decedent was $433,000.00. Id. at 114. The oil and gas company

representative, Bryant McCrary, as well as Larry Waitz, the person who

negotiated on behalf of the landowner group, both testified that Appellant

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2 Grande is a private banker at Wells Fargo in Thornwood, New York, who
helped Decedent when he visited the Thornwood branch. Id. at 4-5.

3 As discussed herein, Anne Penachio was a New York court-appointed
evaluator.

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played no role in negotiating the lease. Id. at 110; Deposition of Bryant

McCrary, 5/13/16, at 9-11, 14, 30. Appellant claimed he was heavily involved

and procured much more money for Decedent than Decedent would have

received without Appellant’s efforts. N.T., 9/19/17, at 114-15; Deposition of

Anne Penachio, 9/21/15, at 23-24. In June 2012, shortly after Decedent

received his check, Appellant traveled from his home in California to

Decedent’s Valhalla home “to celebrate his father’s good fortune.” Appellant’s

Brief at 6. This was Appellant’s first time visiting Decedent in many years.

Id. at 39, 46; N.T., 9/22/17, at 41.

According to Malcolm, Decedent was upset by Appellant’s visit and told

Malcolm he was sleeping with his keys, wallet, and checkbook under his pillow.

N.T., 9/22/17, at 43. Likewise, Howard Gierling, Decedent’s financial advisor

since 1991, testified that Decedent told him he was sleeping with his

checkbook under his pillow. N.T., 9/19/17, at 121-22, 137. Decedent told

Malcolm he wanted Appellant to leave. N.T., 9/22/17, at 43. Malcolm claims

he traveled to the Valhalla home at Decedent’s request and, in the presence

of Decedent and Appellant, asked Decedent if he wanted Appellant to leave.

Id. at 44-45. Decedent said he wanted Appellant out by the following

Wednesday, and Appellant replied, “I’m not leaving here until my business is

done.” Id. at 45. Malcolm was unable to speak with Decedent outside of

Appellant’s presence during his visit to the Valhalla Home. Id. at 44. After

his return home, Malcolm’s phone calls to the Valhalla home either went

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unanswered, or Appellant answered and told Malcolm Decedent did not want

to talk. N.T., 9/22/17, at 54.

Appellant did not leave the Valhalla home despite Decedent’s request in

Malcolm’s presence, and Pamela testified that Decedent eventually overcame

his initial upset at Appellant’s presence. N.T., 9/19/17, at 73. In Grande’s

observations, Decedent was happy to have Appellant back in his life. Grande

Deposition, 9/21/15, at 37. He described Decedent as a “real nice guy” and

a “funny guy” who cracked jokes with the employees. Id. at 31-33, 60. He

thought Petitioners and Decedent’s health care aide were more concerned

about Appellant’s activity than Decedent was. Id. at 49-50.

Concerning the aides Decedent employed before Appellant’s arrival,

Gierling testified that Decedent was pleased with the in-home caregivers, but

he eventually replaced them with another service at Appellant’s behest. N.T.,

9/22/17, at 137. Dr. Lowe confirmed that Decedent never complained about

his home care aides; they seemed to be good people. Lowe Deposition,

9/24/15, at 18, 80. The cost was shockingly high, however, and Dr. Lowe

agreed with Decedent’s complaints about it. Id. at 51-52. The replacements

Appellant hired were far less expensive but did not provide transportation for

Decedent.

Gierling and Jack Bankson, a close friend of Decedent since elementary

school, testified that Decedent’s’ behavior changed after Appellant’s arrival at

the Valhalla Home. N.T., 9/19/17, at 142; Deposition of Jack Bankson

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Deposition, 1/22/16 at 7, 69. Gierling noted that during phone calls Decedent

sounded as if he were reading word for word. N.T., 9/19/17, at 142. Gierling

believed Appellant was in the room with Decedent during phone calls, directing

Decedent’s responses. Id. at 155-56. Aides at the Valhalla Home expressed

concern with Appellant’s presence and reported to Malcolm that they found

“scripts” near the telephones apparently written to guide Decedent’s

telephone conversations. N.T., 9/19/17, at 50-52, 142, Petitioners’ Exhibit C.

According to Bankson, Appellant and Decedent had not seen each other

for years, despite Decedent putting Appellant through various institutions of

higher learning until Appellant was thirty-five years old. Id. at 37-38, 43.

Decedent expressed to Bankson that he mistrusted Appellant’s motives for

visiting. Bankson Deposition, 1/22/16, at 43-44. He believed Appellant

wanted Decedent’s estate, and that he was failing to provide proper care after

the move to Pennsylvania. Id. at 77-78. Appellant mostly refused to admit

Decedent’s Pennsylvania neighbors for visits; he informed none of the

Pennsylvania neighbors when Hazel passed away; and there was no obituary

for Hazel in a local newspaper. Id. at 83, 99, 103-04. Appellant let Bankson

in the Valhalla Home but was controlling of the conversations and frequently

interrupted. Id. at 89-90.

John Pierce, who grew up next door to the Valhalla Home, had lived

there for nearly thirty consecutive years prior to Decedent’s death, had always

been friendly with Decedent and Hazel, and noticed that they did not interact

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with him or other neighbors after Appellant moved in. Id. at 55; Pierce

Deposition, 9/21/15, at 4, 11. Pierce stored the personal effects of a home

care aide who was fired suddenly upon Appellant’s arrival. Id. at 11, 17. He

had never previously heard Decedent complain about the aide. Id. at 18.

Pierce heard Decedent speak highly of Petitioners, Pierce knew Decedent was

hurt that Appellant rarely called or visited and did not attend the wedding of

Decedent and Hazel. Id. at 12-13. Pierce described Decedent as strong willed

when he had to be. Id. at 28. Pierce believed Appellant’s only reason for

moving into the Valhalla Home was to inherit it. Id. at 38-39.

Evidence suggests that Decedent’s view of Petitioners changed after

Appellant’s arrival. Officer Peter Blume of the Mount Pleasant, New York,

Police Department, read from an incident report (he was summoned to the

Valhalla Home in response to concerns over Hazel’s well-being), which stated,

“[Decedent] did express concern to this officer as to the intentions of Hazel’s

children, even referring to them as thieves, although patrol believes those

may be words that [Appellant] influenced [Decedent] to say and believe over

the course of his months’ plus visit.” Blume Deposition, 11/3/15, at 17.

Blume said the home healthcare worker overheard conversations in which

Appellant spoke ill of Petitioners to Decedent. Id. at 18. The healthcare

worker heard Appellant refer to Petitioners as “thieves” and “gold diggers,”

words Decedent later used to describe Petitioners to Blume. Id. at 49-50.

The healthcare worker Blume spoke to believed Appellant and Petitioners were

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more concerned about Decedent’s and Hazel’s assets than their health. Id.

at 40-41. Blume believed the healthcare worker was genuinely concerned for

Decedent and Hazel but discerning those concerns and expressing them to

police was beyond the scope of her employment. Id. at 42. Blume noted that

Decedent did not seem to feel uncomfortable or threatened by Appellant’s

presence. Id. at 47-48. Blume believed, nevertheless, that Appellant wanted

to be the dominant factor in how the estate was distributed, and that Decedent

was receiving “one-sided information” from Appellant. Id. at 44, 47.

Notes from Decedent’s visit to Dr. Lowe on June 1, 2012 indicate “mild

to moderate cognitive loss,” meaning “he’s still functioning pretty well.” Lowe

Deposition, 9/24/15, at 19-20. On July 3, 2012, Decedent presented with

confusion; one of the home care aides reported that Decedent was stressed

about some transfers of money. Id. at 21. Notes from various 2012 visits

indicate that Decedent could converse normally but that his short-term

memory was impaired. Id. at 22-23. Decedent knew the current date but

did not know or recognize the name of the President. Id. at 26. Decedent

understood the things he was saying to Dr. Lowe, and he was clear. Id. at

35.

Dr. Lowe noted that Appellant put Decedent on numerous supplements,

including fish oil, vitamin D, multivitamins, linoleic acid, beta carotene, papaya

enzyme, cherry amino acid, vitamin C, Chlorenergy pills, folic acid, and niacin.

Id. at 26. Dr. Lowe recommended cessation of all but the fish oil, vitamin D,

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and multivitamin. Id. Also, Appellant was feeding Decedent raw eggs. Dr.

Lowe “strongly advised the risk of food poisoning from eating a raw egg.” Id.

at 27. These notes come from an August 6, 2012 visit at which Decedent

presented with, among other things, diarrhea. Id. at 25. The notes indicate

that the issue had resolved. Appellant apparently reported that the raw egg

diet began afterward and contributed to Decedent’s recovery. Id. at 25. Dr.

Lowe disapproved but discerned no ill intent in Appellant’s decision to provide

the supplements and raw eggs. Id. at 63.

Dr. Lowe advised assistance with issues regarding Decedent’s estate

and noted that someone with moderate dementia “can be taken advantage

of” and “very easy to prey upon.” Id. at 45. Dr. Lowe wrote a letter to

Decedent memorializing Decedent’s clearly expressed wish that his finances

be available for the long-term care of Hazel, and that the Hood Farm be willed

to Appellant. Id. at 46.

Petitioners’ concerns over Appellant’s treatment of Decedent led them

to file for the appointment of a guardian for Decedent in New York on July 10,

2012. The guardianship petition stated that Decedent suffered from memory

loss and confusion, and that Hazel, then age 91, suffered from advanced

Alzheimer’s. Decedent appeared at the initial proceeding and did not oppose

appointment of a guardian. The New York Court appointed a temporary

guardian and issued a preliminary order precluding Appellant from moving

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Decedent across state lines. The court also forbade encumbrance of

Decedent’s property by Petitioners or Appellant.

Anne Penachio, the New York court-appointed evaluator, confirmed the

health aide’s attachment to Decedent and concern about Appellant’s negative

impact on him. Deposition of Anne Penachio, 9/21/15, at 33. Penachio

interviewed Appellant4 and noted his apparent “controlling influence” over

Decedent, and his resentment toward Petitioners based on his belief that his

inheritance was paying for their mother’s health care. Id. at 36-37. Appellant

became “enraged” at the prospect of Penachio recommending appointment of

a guardian and told Decedent Penachio wanted to take away his freedom. Id.

at 37.

According to Penachio, Decedent wanted the Hood Farm to go to

Appellant, the Valhalla Home to go to Petitioners, and the remainder of the

estate to be split equally among the three. Id. at 59. Decedent expressed

frustration with Petitioners not providing for the care of Hazel. Id. at 60. He

also was upset by the guardianship proceeding. Id. at 65. When Penachio

explained that she was concerned about him being preyed upon, he responded

that he “had the same concerns.” Id. at 68. Decedent ultimately consented

to the appointment of a guardian. Id. Decedent told Penachio that the

caregiver he had before Appellant moved in was “excitable and caused

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4 Appellant did not testify at any of the Pennsylvania hearings.

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commotion.” Id. at 75. Decedent also said she was too expensive. Id. at

76-77.

Pauline Galvin, the New York court-appointed temporary guardian of

Decedent’s person and property, testified that the creation of a guardianship

did not affect Decedent’s testamentary capacity. Galvin Deposition, 9/21/15,

at 5, 40. She believed that Decedent was able to articulate his wishes, and

that he did not want a guardianship. Id. at 56. Galvin testified that Decedent

signed a $180,000 mortgage for the Valhalla Home despite an order to the

contrary. Id. at 10-11, 13-15. Upon the filing of her final report, Galvin

notified Decedent’s long-time financial advisor Gierling that checks needed to

be issued to the guardian and court examiner; Gierling responded that

Decedent’s accounts—formerly worth hundreds of thousands of dollars—had

been emptied. Id. at 23, 38. Galvin considered this a violation of her

authority, and the guardianship court issued an order for the return of funds

to a guardianship account. Id. at 23-25. As of Decedent’s move to

Pennsylvania, Galvin was no longer guardian of his person because the court

determined that he did not need a personal guardian. Id. at 31. At a February

19, 2013 hearing at which Decedent and Appellant both appeared, the New

York court did not issue any contempt order. The court announced its

intention to terminate the guardianship, and it issued an order in accord with

that intent on April 3, 2013. During the guardianship proceeding, Decedent

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filed an affidavit stating that he authorized Appellant’s 2011 transfers from his

Wells Fargo account. Grande Deposition, 9/21/15, at 52-53. (See n. 2).

In October 2012, while the guardianship proceedings were pending

against Decedent and Hazel5 in New York, Appellant moved them to the Hood

Farm. There is no evidence Appellant secured any help in caring for Decedent

and Hazel at the Hood Farm. Dr. Lowe was not consulted about the move to

Pennsylvania. Lowe Deposition, 9/24/15, at 48. Hazel would have needed a

home health aide in Pennsylvania; Decedent just needed to continue his

medicine and periodic blood testing. Id. at 50.

Petitioners were not informed of this move in advance, and they were

not permitted to visit Decedent or Hazel in Rouseville. N.T., 9/9/17, at 55-

56. In connection with her investigation for a guardianship proceeding

concerning Hazel, Penachio reported that she contacted local police upon

learning that Hazel would be removed from New York despite a court order

prohibiting it. Penachio Deposition, 9/21/15, at 52-54, 89. Local police

responded to the Valhalla Home on October 21, 2012, based on a report of a

moving van in the driveway. At the scene, Sergeant Michael McGuinn of the

Mount Pleasant Police Department observed Appellant overseeing the loading

of the van. McGuinn Deposition, 9/23/15, at 16. Appellant told McGuinn he

was moving Decedent and Hazel to Pennsylvania that day. Id. A health care

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5 Petitioners commenced a separate guardianship proceeding for Hazel.

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aide named Lily told McGuinn that Appellant told her not to call the police. Id.

She played a recording of that conversation for McGuinn. Id. at 17. Appellant

had informed Lily on the day of the move that her services were no longer

required because Decedent and Hazel were moving. Id. at 17, 42.

McGuinn described Hazel as “very frail,” and “an empty vessel.” Id. at

23. Concerned by her appearance when he saw her on October 21, 2012,

McGuinn summoned a paramedic. The paramedic suggested taking Hazel to

a local medical center, but Decedent refused to permit it. Id. at 17. Decedent

was adamant about not taking Hazel to the hospital, and about moving to

Pennsylvania. Id. at 40. According to McGuinn, a longtime acquaintance of

Decedent, it was “out of character for Decedent to be so forceful.” Id.

McGuinn read to Decedent and Appellant a New York state court order

prohibiting Hazel’s transportation out of the state. Id. at 18-19. In response,

Appellant (or Decedent—it is unclear from the transcript) “gave every

indication that he didn’t care about the court order.” Id. at 20. Hazel passed

away shortly after the move. Pamela was unaware of her mother’s passing

until three weeks after it occurred. N.T., 9/9/17, at 60.

On January 15, 2013, Appellant took Decedent to the office of Jeffrey

Banner to have the 2013 Will prepared. The 2013 Will left Decedent’s entire

estate to Appellant. Banner testified that Decedent appeared competent and

was able to articulate his wishes. N.T., 9/21/17, at 9. Banner expected any

new will to be contested, so he wanted to document that the 2013 Will was

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executed at Decedent’s direction. Id. at 4. Banner described Decedent as

“one pissed off marine […] a very well-educated man, very accomplished, and

he knew exactly what he wanted to do.” Id. at 7. Banner further described

Decedent as “[o]ne of the most competent 88-year-old marines I probably

ever sat with.” Id. at 45. Decedent had a “command presence” when he

entered a room. Id. at 45. In his conversations with Decedent, Banner found

Decedent to be very dominant over Appellant. Id. Banner described

Appellant as “extremely intelligent, yet socially awkward or inept and quiet in

the presence of Max.” Id. at 9. Banner believed Decedent was “running the

show.” Id.

Banner testified that Decedent wanted out of New York, and that he was

angered by the guardianship proceeding. Id. at 7-8. Banner believed

Decedent traveled from New York to Pennsylvania to get away from intrusion

from family and intrusion from lawyers appointed pursuant to the

guardianship. Id. at 34. According to Banner, Decedent believed Gierling

was “slippery” and that Petitioners were “bastard crooks” who ripped up the

2009 Will while he was sick and procured the execution of the 2011 Will. Id.

at 34-35, 39-40.

As to the details of the New York guardianship, Banner testified that he

did not have a complete record. Id. at 17. At one point, when asked if he

was aware of the pending guardianship in New York, Banner responded,

“Potentially, yes.” Id. at 36. He claimed ne never saw a New York order

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prohibiting Decedent from executing a new power of attorney, which Decedent

did in Banner’s office along with the 2013 Will. Id. at 23. An intake form

from Banner’s office indicated that Appellant was Decedent’s financial advisor,

and that Appellant was a professional financial advisor. Id. at 26-27. The

intake form also indicated that Decedent and his spouse were in good health.

Id. at 31. All phone calls from Decedent to Banner were on Appellant’s cell

phone, as Decedent did not have his own phone. Id. at 29-30. Appellant also

transported Decedent to each of his visits to Banner’s office. Id. at 30.

Before turning to the merits, we address two preliminary concerns.

First, Appellant was critically injured in an automobile accident in California in

December of 2017. His injuries confined him to a nursing home where he died

on August 22, 2020. On July 9, 2021, Appellant’s counsel filed a document

titled “Application for Substitution or Non-Substitution of Appellant.” The

application requests this Court to either substitute Appellant's surviving wife,

Marcia, as Appellant, or to decide the issues on appeal without substitution for

Appellant. The application avers that Marcia has elected not to open an estate

for Appellant. Application, 7/9/2021, at ¶¶ 3-5. The only item in Appellant’s

estate would be his inheritance from Decedent, and the Application avers that

opening an estate in California and an ancillary estate in Pennsylvania might

not be worth the cost to Marcia, depending upon the outcome of this appeal.

Id.

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Rule 502 of the Pennsylvania Rules of Appellate Procedure provides, in

pertinent part:

(a) Death of a party.--If a party dies after a notice of appeal or
petition for review is filed or while a matter is otherwise pending
in an appellate court, the personal representative of the deceased
party may be substituted as a party on application filed by the
representative or by any party with the prothonotary of the
appellate court. The application of a party shall be served upon
the representative in accordance with the provisions of Pa.R.A.P.
123. If the deceased party has no representative, any party may
suggest the death on the record and proceedings shall then be
had as the appellate court may direct.

Pa.R.A.P. 502(a). Marcia has not been appointed Appellant’s personal

representative and does not intend to open an estate for him. Appellant

therefore relies on the final sentence above, providing that the appeal may

proceed as this Court may direct upon filing of a suggestion of death.

Appellant asserts no grounds on which we may order the substitution of

Marcia. He does not argue that she has standing to be substituted as a party

in her own right. Instead, he cites Witherspoon v. McDowell-Wright, 241

A.3d 1182 (Pa. Super. 2020), a conversion action between an estranged

romantic couple. The appellant in that case appealed from a $7,500.00

judgment in his favor, and the appellee died after the appeal was filed. This

Court explained that the “Rules of Appellate Procedure allow for, but do not

mandate, substitution under these circumstances.” Id. at 1186 (citing

Pa.R.A.P. 502(a)). The Witherspoon Court noted the distinction between

Rule 502(a) and the trial court rule, which mandates substitution of a personal

representative, and which has been construed to deprive the trial court of

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subject matter jurisdiction absent the appointment of a personal

representative. Id. (citing Pa.R.C.P. No. 2355; Grimm v. Grimm, 149 A.3d

77, 84 (Pa. Super. 2016), appeal denied, 169 A.3d 25 (Pa. 2017)). Because

Rule 502(a) is permissive, the Witherspoon Court held, the lack of

substitution does not deprive this Court of jurisdiction. Id. Further, the

appeal was not moot because its outcome had ramifications for the appellant’s

rights against his former girlfriend’s estate. Id. (citing Shiomos v.

Commonwealth State Emp. Ret. Bd., 626 A.2d 158, 159 n.1. (Pa. 1993)

(holding that an appellant’s death does not render an appeal moot where the

outcome may have relevance to the appellant’s estate or to issues recurring

statewide)).

Pursuant to Witherspoon and Shiomos, we conclude that Appellant’s

death does not deprive this Court of subject matter jurisdiction. We further

conclude that this appeal is not moot, as it affects Petitioners’ right, if any, to

recover under the 2011 Will. The outcome will also affect the amount of

Appellant’s inheritance from Decedent, which will in turn pass from Appellant’s

estate to any person or entity entitled to recover under any applicable law or

testamentary document. We therefore accept the application in lieu of a

separately filed suggestion of death and grant Appellant’s application to

proceed without substitution of a party.6

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6For simplicity’s sake, we shall continue to refer to the deceased Appellant as
“Appellant” herein.

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Next, we address Appellant’s challenge to the Orphans’ Court’s decision

to adopt, verbatim, Petitioners’ proposed findings of fact and conclusions of

law. Our Supreme Court discourages this practice:

We caution the PCRA court on remand against over-reliance
upon any party’s submissions as the basis for explaining its
rulings. We generally discourage the practice of wholesale
adoption of facts or law as presented by litigants.
Commonwealth v. Williams, [732 A.2d 1167, 1176 (Pa. 1999)]
(admonishing PCRA court against wholesale adoption of one
advocate’s position at a critical stage of the proceedings; calling
for autonomous judicial expression of reasons for decision); Id.
at 1192 (opining that appellate review should not proceed until
PCRA court files a proper opinion) (Castille, J., concurring).
Moreover, a fact-finding court should support its determinations
with sufficient explanations of the facts and law, including specific
citations to the record for all evidence on which it relies, and to
the legal authority on which it relies, to facilitate appellate review.
Cf. Commonwealth v. Norris, [389 A.2d 668 (Pa. Super.
1978)].

Commonwealth v. Weiss, 986 A.2d 808, 816 n. 4. (Pa. 2009). We echo the

Supreme Court’s admonition here. The Orphans’ Court’s opinion offers little

in the way of its own analysis—a two-page summary on the concluding two

pages of a 72-page opinion that otherwise adopts the Appellee’s proposals.

Nonetheless, this Court has held that a trial court’s adoption of a party’s

proposed findings does not create reversible error:

Appellants next contend that the trial court erred by relying
excessively on the Bank’s proposed findings and adopting many
of its findings of fact from the Bank’s proposed findings.
Appellants cite no case law to support this proposition as indeed
there is none. Rather, the cases hold that it is not error for the
trial court to adopt a party’s proposed findings of fact and/or
conclusions of law. In Sotak v. Nitschke, [449 A.2d 729 (Pa.
Super. 1982)], the court adopted all but one of the plaintiff’s
proposed findings of fact and conclusions of law. On appeal, we

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held that the court may adopt a party’s proposed findings and
conclusions as it deems warranted or it may state its findings and
conclusions in its own language. Similarly in Commonwealth ex
rel. Bloomsburg State College v. Porter, [610 A.2d 516 (Pa.
Cmwlth. 1992)], the court adopted the plaintiff’s findings of fact
and conclusions of law. The Commonwealth Court held that this
was not reversible error, citing the statement in Sotak that
‘Nothing in the rules, however, precludes a court from adopting
those findings and conclusions proposed by a party. In fact, the
contrary is implied.’ Bloomsburg State College, 610 A.2d at
518 (citing Sotak, [449 A.2d 733)]. There is no merit to this
claim.

Eighth North-Val, Inc. v. William L. Parkinson, D.D.S., P.C., Pension

Tr., 773 A.2d 1248, 1251–52 (Pa. Super. 2001) (emphasis in original).

Along with our Supreme Court in Weiss, we disapprove of the Orphans’

Court’s wholesale adoption of Appellee’s proposed findings of fact and

conclusions of law. To facilitate appellate review, the Orphans’ Court should

have provided its own summary of facts and legal analysis of a voluminous

record compiled over many years. In accord with this Court’s opinion in

Eighth North, however, we decline to find reversible error. Petitioners’

proposed findings of fact were copiously supported with record citations, and

our review of the record largely confirms their accuracy.

We now turn to the central issue in this case: does the record support

the Orphans’ Court’s conclusion that Petitioners established, by clear and

convincing evidence, that Appellant exerted undue influence over Decedent,

and that Appellant failed to rebut that finding by clear and convincing

evidence.

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In a will contest, the hearing judge determines the
credibility of the witnesses. The record is to be reviewed in the
light most favorable to appellee, and review is to be limited to
determining whether the trial court’s findings of fact were based
upon legally competent and sufficient evidence and whether there
is an error of law or abuse of discretion. Only where it appears
from a review of the record that there is no evidence to support
the court’s findings or that there is a capricious disbelief of
evidence may the court’s findings be set aside.

In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014). “In making a

will, an individual may leave his or her property to any person or charity, or

for any lawful purpose he or she wishes, unless he or she “lacked mental

capacity, or the will was obtained by forgery or fraud or undue influence, or

was the product of a so-called insane delusion.” Id. Where the proponent of

the will presents evidence of the formalities of probate (not at issue presently),

the burden shifts to the person contesting on grounds of undue influence who

must prove, by clear and convincing evidence, that:

(1) the testator suffered from a weakened intellect at the
time the will was executed; (2) there was a person in a
confidential relationship with the testator; and (3) the person in
the confidential relationship received a substantial benefit under
the challenged will.

Id. at 14. “[U]ndue influence is a subtle, intangible and illusive thing,

generally accomplished by a gradual, progressive inculcation of a receptive

mind. Consequently, its manifestation may not appear until long after the

weakened intellect has been played upon.” In re Estate of Fritts, 906 A.2d

601, 607 (Pa. Super. 2006), appeal denied, 916 A.2d 1103 (Pa. 2007).

“Conduct constituting influence must consist of imprisonment of the body or

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mind, fraud, or threats, or misrepresentations, or circumvention, or inordinate

flattery or physical or moral coercion, to such a degree as to prejudice the

mind of the testator, to destroy his free agency and to operate as a present

restraint upon him in the making of a will.” In re Estate of Angle, 777 A.2d

114, 123 (Pa. Super. 2001) (citations and quotation marks omitted). Where

the contestant establishes the three elements, the burden shifts to the

proponent to prove, by clear and convincing evidence, the absence of undue

influence. Nalaschi, 90 A.3d at 14.

Here, there is no question that Appellant, the person allegedly in the

confidential relationship with Decedent, received a substantial benefit under

the 2013 Will. We therefore confine our analysis to whether Decedent suffered

from a weakened intellect and whether Appellant and Decedent were in a

confidential relationship. “Weakened intellect in the context of a claim of

undue influence need not amount to testamentary incapacity and will

generally be proven through evidence more remote in time from the actual

date of the will's execution.” Id. (quoting In re Bosley, 26 A.3d 1104, 1112

(Pa. Super. 2011)). There is no bright line test for weakened intellect, but

our courts “have recognized that it is typically accompanied by persistent

confusion, forgetfulness and disorientation.” Fritts, 906 A.2d at 607. In

discerning persistent confusion, “a trial court has greater latitude to consider

medical testimony describing a decedent’s condition at a time remote from

the date that the contested will was executed.” Id.

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Dr. Lowe testified that, as of mid-2012, Decedent was moderately

cognitively impaired. He also testified that Decedent’s impairment rendered

him susceptible to be preyed upon financially. Dr. Lowe also noted persistent

problems with Decedent’s short-term memory. For these reasons, Dr. Lowe

asked Decedent about his wishes for his estate and memorialized those wishes

in a letter to Decedent. At that time, Decedent wanted the Valhalla Home to

go to Petitioners and the Hood Farm to Appellant, as per the 2011 Will. Dr.

Lowe’s observations, made within approximately a half year of the execution

of the disputed 2013 Will, are pertinent to the weakened intellect analysis as

per Fritts.

Decedent’s Valhalla neighbor Pierce and Decedent’s lifelong friend

Bankson, both of whom knew Decedent for much of his life, testified to distinct

changes in Decedent’s behavior after Appellant arrived. They noticed

Appellant isolating Decedent and controlling and/or interrupting Decedent’s

conversations. Other changes accompanied Appellant’s arrival, after many

years of absence, in Decedent’s life. Decedent went from being furious at

Appellant’s unauthorized removal of money from Decedent’s Wells Fargo

account, to filing an affidavit in the New York guardianship proceeding averring

that he authorized the transfers. Decedent went from speaking highly of

Petitioners, according to next-door neighbor Pierce, to calling them bastard

crooks and gold diggers. Decedent also changed health care aide services,

though it appears there were legitimate financial reasons for doing so. The

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changes Appellant made to Decedent’s diet—numerous supplements and raw

eggs—were bizarre, though they apparently did no lasting harm. Finally, the

record reflects that Decedent had always taken good care of Hazel, on his own

at first and then with in-home aides when he was no longer able. But on the

day of the move to Pennsylvania, he ignored a court order prohibiting her

removal from New York, and he ignored the suggestion of Sergeant McGuinn

and a paramedic that Hazel be transported to a nearby hospital for

observation. Sergeant McGuinn, a longtime acquaintance of Decedent, noted

that Decedent’s forceful behavior on that occasion was out of character for

him.

Regarding Appellant, the record shows he rarely visited or contacted

Decedent prior to the oil and gas windfall. Appellant told Hazel’s son Malcolm

that he was not leaving Valhalla until his job was done. Appellant repeatedly

told Penachio that Petitioners were spending his inheritance caring for Hazel.

He told Bankson he was a financial advisor. He told gas company

representative McCrary he was a petroleum engineer. He claimed to play a

leading role in procuring $433,000.00 in oil and gas royalties for Decedent,

despite testimony to the contrary from McCrary and from Waitz, who

negotiated the lease on behalf of the landowners. As the Orphans’ Court noted

in its opinion, Appellant failed to appear to testify in this matter, and failed to

file an accounting for his time as executor of Decedent’s estate, resulting in

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the issuance of a bench warrant and sanctions. Orphans’ Court Opinion,

7/18/19, at 72.

After the move, Appellant accompanied Decedent to the law offices of

Banner for the execution of the 2013 Will. Banner was very forceful in his

testimony about Decedent’s apparent domination of Appellant. But his

testimony about Decedent’s personality does not square with others who knew

Decedent for much of his life, including Pierce and Sergeant McGuinn. Grande,

who was acquainted with Decedent only from Decedent’s occasional visits to

the bank, described him as friendly and a bit of a jokester. Banner’s

credibility—and/or the weight to be given his observation as compared to

others who knew Decedent longer—was for the Orphans’ Court to decide.

In summary, there was evidence that Decedent’s dementia had

progressed to the point where he was susceptible to manipulation. There is

testimony from non-party longtime acquaintances of Decedent that his

behavior changed upon Appellant’s arrival. Further, the record contains

evidence of Appellant’s controlling behavior and dishonesty, and the

opportunistic timing of his arrival in Valhalla. All these things support a finding

that Decedent suffered from weakened intellect, and that Appellant worked

gradually to prejudice Decedent’s mind against Petitioners and leave his estate

to Appellant.

Next, we consider whether Appellant and Decedent had a confidential

relationship. “[A] confidential relationship exists when the circumstances

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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.” Nalaschi, 90 A.3d at 15 (quoting In re Estate

of Boardman, 80 A.3d 820, 823 (Pa. Super. 2013)). A confidential

relationship “is marked by such a disparity in position that the inferior party

places complete trust in the superior party's advice and seeks no other

counsel, so as to give rise to a potential abuse of power.” Fritts, 906 A.2d at

608. “A parent-child relationship does not establish the existence of a

confidential relationship nor does the fact that the proponent has a power of

attorney where the decedent wanted the proponent to act as attorney-in-fact.”

Angle, 777 A.2d at 123.

The record supports a finding by clear and convincing evidence that

Appellant gradually gained trust and exerted an overmastering influence over

Decedent. Appellant controlled whether and when Decedent visited with

neighbors, friends, and even his stepchildren. Appellant controlled the topics

of conversation, and, to some extent, what Decedent said during those visits.

Decedent hired new healthcare aides at Appellant’s behest. Appellant exerted

some control over Decedent’s diet, accompanied Decedent to doctor’s visits,

moved Decedent and Hazel to Pennsylvania, and transported Decedent to

Banner’s office for his consultations regarding the 2013 Will. Decedent’s

position of complete trust toward Appellant, and the potential for Appellant’s

abuse of power, is plainly evident. For all the foregoing reasons, we conclude

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the record supports the Orphans’ Court’s findings, by clear and convincing

evidence, that Appellant exercised undue influence over Decedent.

Furthermore, we cannot conclude that Appellant rebutted the finding of

undue influence. The record contains nothing to rebut Dr. Lowe’s testimony

that Decedent’s mental state had declined to the point that he could be easily

preyed upon, despite his alertness and ability to express his wishes.

Moreover, the Orphans’ Court clearly credited the testimony about the control

Appellant exerted over Decedent, and the changes in Decedent’s thinking that

followed. The court clearly disbelieved or assigned little weight to Banner’s

testimony given the events that preceded Decedent’s visits to his office.

We recognize Appellant’s concern about the Orphans’ Court’s reliance

on Petitioners’ proposed findings of fact. Again, we strongly disapprove of the

Orphans’ Court’s wholesale adoption thereof. We further agree with

Appellant’s assertion that in some instances the findings are slanted in

Petitioners’ favor, as could be expected. We are cognizant that the New York

court ultimately concluded that Decedent did not need a guardian, that there

was no legal impediment to Decedent leaving New York, and that various

witnesses, including Dr. Lowe, Penachio, Banner, and others, testified that

Decedent was alert and could express his wishes. But given Dr. Lowe’s

testimony that Decedent was susceptible to being preyed upon and given the

many changes in Decedent’s behavior, lifestyle, and interactions that

coincided with Appellant’s arrival in Valhalla, culminating in Decedent’s

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execution of the 2013 Will, the Orphans’ Court was presented with a judgment

call as to whether the 2013 Will was the product of Appellant’s undue influence

over Decedent. We discern no reversible error under the applicable standard

of review.

Order affirmed. Application for non-substitution granted. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2021

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