Est. of Joseph T. Roche, Sr., Appeal of: Campenni ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ESTATE OF JOSEPH T. : IN THE SUPERIOR COURT OF
ROCHE, SR., A DECEASED PERSON : PENNSYLVANIA
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APPEAL OF: SUZANNE CAMPENNI :
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: No. 1377 MDA 2022
Appeal from the Order Entered August 26, 2022
In the Court of Common Pleas of Luzerne County
Orphans' Court at No(s): 4020-1311
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 27, 2023
Suzanne Campenni appeals from the order denying her petition for
citation sur appeal to set aside the last will and testament of Joseph T. Roche,
Sr., deceased (“Decedent”), and affirming the decree of the register of wills
admitting the will to probate. Campenni argues that Decedent’s will was the
product of undue influence. We affirm.
Decedent was married to Jeanne Roche, until her death in March 2019.
Decedent and Jeanne Roche shared seven children: Thomas Roche, Joseph
T. Roche, Jr., Mary Ellen Winn, Campenni, Richard Roche, Beverly Donachie,
and Dorothy Moher. Beginning in 2014, Winn had power of attorney over
Decedent, and used it on two occasions prior to Decedent’s death. Further,
Winn helped Decedent by taking him to doctor’s appointments and cooking
him food.
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On June 5, 2019, Decedent met with Frank Aritz, Esq. (“Attorney Aritz”)
to draft a will (“2019 Will”). During the meeting, Decedent told Attorney Aritz
that he was dissatisfied with four of his children, Thomas Roche, Joseph T.
Roche, Jr., Beverley Donachie, and Campenni, and that his other three
children, Winn, Moher, and Richard Roche, did more for him and his late wife
than the other children. Under the terms of the 2019 Will, Winn was made the
executor of the estate. Further, Winn, Richard Roche, and Moher would each
receive a one-third share of two-thirds of Decedent’s estate, while the
remaining four children would each receive one-quarter of the remaining one-
third share.1 The estimated value of the estate was approximately $720,000.
Decedent died on August 12, 2020. Winn subsequently filed a petition
for probate and grant of letters testamentary with the Luzerne County Register
of Wills. The register of wills granted Winn letters testamentary and admitted
the 2019 Will to probate. On February 22, 2021, Campenni filed a petition of
citation sur appeal from probate and to set aside the 2019 Will. Within months,
the trial court held a non-jury trial, at which Winn, Campenni, Attorney Aritz,
Richard Roche, Moher, and Joseph Roche, Jr. testified. At the conclusion of
the trial, both parties submitted proposed findings of fact and conclusions of
law. Thereafter, the trial court denied Campenni’s petition for citation sur
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1 The trial court noted that an alleged will executed in 2014 gave the children
equal shares of the estate. See Trial Court Opinion, 8/26/22, at 5.
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appeal and affirmed the decree of the register of wills admitting the 2019 Will
to probate. Campenni timely appealed.
On appeal, Campenni raises the following questions for our review:
1. Did the trial court commit an error of law with respect to the
legal standard it applied on the issue of weakened intellect by
confusing the standards for lack of testamentary capacity with
the element of weakened intellect?
2. Did the trial court commit an error of law when it severely
discounted the testimonies of all witnesses pertaining to
Decedent’s depression?
3. Did the trial court abuse its discretion when it ruled against the
weight of evidence and ignored or discounted significant
testimony that the Decedent had become depressed by 2019
and instead found that the Decedent did not suffer from a
weakened intellect?
4. Did the trial court commit an error of law when it failed to find
that [Campenni] met her prima facie burden, and refused to
shift the burden of proof to the proponents of the 2019 Will?
Appellant’s Brief at 6.
This Court’s standard of review in a will contest is restricted to
determining whether the trial court’s factual findings are supported by the
record:
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.
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In re Estate of Schumacher, 133 A.3d 45, 49-50 (Pa. Super. 2016) (citation
omitted).
In her first claim, Campenni asserts that the trial court committed an
error of law by confusing the standard for lack of capacity with the standard
for a weakened intellect. See Appellant’s Brief at 21, 23. Campenni argues
that a demonstration of a weakened mental condition does not need to rise to
a demonstration of testamentary incapacity. See id. at 22, 23. Campenni
argues that the trial court improperly supported its determination that
Decedent did not suffer from a weakened intellect by citing to Attorney Aritz’s
testimony that Decedent had testamentary capacity. See id. at 23.
Campenni also claims that the trial court improperly discounted
evidence that Decedent was depressed due to the passing of his wife since
undue influence is accomplished through a gradual inculcation of the mind and
therefore facts remote to the signing of a will are critical in demonstrating
undue influence. See id. at 23-24. Campenni notes that the trial court
improperly relied on the occasions Decedent remembered certain things and
failed to recognize the evidence establishing his mental decline. See id. at 24.
Preliminarily, Campenni does not refer to the place in the record that
the trial court utilized an incorrect standard of review. See Pa.R.A.P. 2119(c)
(“If reference is made to the … opinion or order, or any other matter appearing
in the record, the argument must set forth, in immediate connection
therewith, … a reference to the place in the record where the matter referred
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to appears (see Rule 2132) (references in briefs to the record).”); see also
Krauss v. Trane U.S. Inc., 104 A.3d 556, 584 (Pa. Super. 2014) (“This Court
will not act as counsel and will not develop arguments on behalf of an
appellant.” (citation omitted)).
Moreover, Campenni does not dispute the trial court’s ultimate finding
that she failed to meet her burden of establishing, through any medical
testimony or other evidence, that Decedent had a weakened intellect. See
Trial Court Opinion, 8/26/22, at 11, 20; see also id. at 3-11 (wherein the
trial court made findings of fact, including that Attorney Aritz testified that he
had no reservations about Decedent’s mental health and the children had
conflicting testimony about Decedent’s health). Instead, Campenni merely
seeks to have this Court reweigh the evidence in her favor to establish
Decedent had a weakened intellect. However, this Court may not reweigh the
evidence, or usurp the trial court’s credibility determinations. See In re
Estate of Schumacher, 133 A.3d at 49-50; see also Estate of Mikeska,
217 A.3d 329, 336 (Pa. Super. 2019) (explaining that in a non-jury
proceeding, “[c]redibility determinations and consideration of conflicts in the
evidence are within the purview of the trial court.” (citation omitted)).
Accordingly, we cannot conclude that the trial court either utilized an incorrect
standard in addressing the weakened intellect claim or improperly weighed
the evidence.
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In her second claim, Campenni reargues that the trial court’s
determination that Decedent did not suffer from a weakened intellect is
against the weight of the evidence. See Appellant’s Brief at 25. Campenni
states that the uncontroverted evidence established that Decedent suffered
from depression, noting that Jeanne’s death left him weepy and vulnerable
and that he lost the will to live. See id. at 25, 26. Campenni asserts that the
trial court ignored evidence showing Decedent relied on Winn for daily life
activities and Winn had power of attorney over him. See id. at 26. Campenni
further claims that testimony at trial showed Winn would threaten to place
Decedent in a nursing home. See id. at 25. Campenni concludes that the
evidence demonstrated that Decedent’s intellect had declined in the last year
of his life. See id. at 26.
With respect to weakened intellect, this Court has recognized the case-
by-case nature of the analysis:
The weakened intellect necessary to establish undue influence
need not amount to testamentary incapacity. Although our cases
have not established a bright-line test by which weakened intellect
can be identified to a legal certainty, they have recognized that it
is typically accompanied by persistent confusion, forgetfulness
and disorientation. Moreover, because undue influence is
generally accomplished by a gradual, progressive inculcation of a
receptive mind, the “fruits” of the undue influence may not appear
until long after the weakened intellect has been played upon.
Accordingly, the particular mental condition of the testator on the
date he executed the will is not as significant when reflecting upon
undue influence as it is when reflecting upon testamentary
capacity. More credence may be given to remote mental history.
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In re Estate of Schumacher, 133 A.3d at 52 (internal citations and some
quotation marks omitted).
As noted above, the trial court specifically found that Campenni failed
to produce any medical testimony or records to support her claim that
Decedent had a weakened mental intellect. See Trial Court Opinion, 8/26/22,
at 11, 20. In fact, the trial court found that the evidence established that
despite Decedent’s declining physical health, “he retained his mental capacity
through recitation of the terms and execution of the 2019 Will.” Id. at 12.
Here, Campenni fails to establish, through any reasoned analysis, that
Decedent’s depression from losing his wife or the fact Winn had power of
attorney over Decedent demonstrated that he had a weakened intellect. We
further decline Campenni’s invitation to reweigh the evidence in her favor.
See In re Estate of Schumacher, 133 A.3d at 49-50; see also Estate of
Mikeska, 217 A.3d at 336. Therefore, we conclude Campenni’s second claim
is without merit.
In her third claim, Campenni contends that she met her burden of
proving undue influence and that the trial court erred in failing to shift the
burden to Winn. See Appellant’s Brief at 26, 27-28. Campenni claims that
Winn’s share of the estate increased in the 2019 Will, which established a
substantial benefit. See id. at 27. Campenni, incorporating her second
argument by reference, argues that the evidence established that Decedent
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had a weakened intellect. See id. Campenni further asserts that Winn had a
confidential relationship with Decedent. See id.
“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.” In re Estate of
Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014) (citation and quotation marks
omitted).
The resolution of a question as to the existence of undue influence
is inextricably linked to the assignment of the burden of proof.
Once the proponent of the will in question establishes the proper
execution of the will, a presumption of lack of undue influence
arises; thereafter, the risk of non-persuasion and the burden of
coming forward with evidence of undue influence shift to the
contestant. The contestant must then establish, by clear and
convincing evidence, a prima facie showing of undue influence by
demonstrating that: (1) the testator suffered from a weakened
intellect; (2) the testator was in a confidential relationship with
the proponent of the will; and (3) the proponent receives a
substantial benefit from the will in question. Once the contestant
has established each prong of this tripartite test, the burden shifts
again to the proponent to produce clear and convincing evidence
which affirmatively demonstrates the absence of undue influence.
In re Estate of Byerley, 284 A.3d 1225, 1237 (Pa. Super. 2022) (citations
and quotation marks omitted).
Campenni’s argument merely provides bald speculative allegations with
no support in the record or case law and incorporates by reference her prior
argument regarding weakened intellect. Such an argument results in a waiver
of the claim. See In re Est. of Whitley, 50 A.3d at 209; Moses Taylor
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Hosp. v. White, 799 A.2d 802, 805 (Pa. Super. 2002) (noting that an
“adoption by reference results in an inadequate explanation of the issues and
forecloses any meaningful appellate review.”).
In any event, even if we did not find waiver, Campenni did not establish
a prima facie case of undue influence through clear and convincing evidence.
Campenni’s argument fails to present any compelling authority or logic to
support her claims that (1) Decedent suffered from a weakened intellect, and
(2) Winn was in a confidential relationship with Decedent. See Appellant’s
Brief at 27 (containing Campenni’s boilerplate assertions that Decedent’s
mental health declined and that Winn held a confidential relationship with
Decedent). Moreover, Attorney Aritz’s credible testimony established that
Decedent explained that the terms of the 2019 Will reflected that the children
who took better care of him and Jeanne Roche would receive a larger share of
his estate. See N.T., 6/7/22, at 325-29; see also Trial Court Opinion,
8/26/22, at 15 (finding Attorney Aritz’s testimony to be highly credible).
Accordingly, even if Campenni did not waive her third claim, it would be
without merit.
In her final claim, Campenni contends that the trial court’s
determination that the 2019 Will was not the result of undue influence is
against the weight of the evidence. See Appellant’s Brief at 28. Campenni
highlights that Winn had a confidential relationship with Decedent because she
provided him meals, helped in his daily life activities, took him to doctors’
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appointments, and had power of attorney over Decedent. See id. at 29.
According to Campenni, because Winn had a confidential relationship with
Decedent, the burden shifted to Winn to prove that the 2019 Will was not the
product of fraud. See id. Further, Campenni maintains that Winn, Moher, and
Richard Roche formed an alliance to care for Decedent in order to avoid
spending the money on a nursing home and keeping the money. See id.
Here, Campenni has not demonstrated that her speculative arguments
have support in the record, and instead asks this Court to reweigh the
evidence in her favor. We again decline Campenni’s invitation to do so. See
In re Estate of Schumacher, 133 A.3d at 49-50; see also Estate of
Mikeska, 217 A.3d at 336. Moreover, Campenni misstates the law in seeking
to shift the burden to Winn merely based upon the purported existence of a
confidential relationship. See In re Estate of Byerley, 284 A.3d at 1237
(noting that to prove undue influence, the contestant must establish each
prong of the tripartite test before the burden shifts to the proponent of the
will). Campenni’s final claim is without merit.
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Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/27/2023
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