In Re: Est. of J. Tecce, Appeal of: Tecce, T. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: ESTATE OF JOSEPH TECCE, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
:
:
APPEAL OF: TANYA TECCE : No. 2593 EDA 2023
Appeal from the Decree Entered September 12, 2023
In the Court of Common Pleas of Delaware County Orphans’ Court at
No(s): 040-2018
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED NOVEMBER 18, 2024
Tanya Tecce (“Tecce”) appeals from the decree which: (1) found she
failed to establish that the will of her father, Joseph Tecce (“the Decedent”),
resulted from undue influence; (2) granted nonsuit, on her citation sur appeal,
in favor of Joseph Tecce, Jr. (“Brother”), Roseanna Giannone (“Giannone”),
and Matthew Ferragame (“Executor”); and thus (3) directed that the Register
of Wills probate Decedent’s June 29, 2017 will (“June 2017 will”). We affirm.
The Decedent had two adult children: Tecce and Brother. Tecce has
three children, who were the Decedent’s only grandchildren. See N.T.,
11/1/22, at 14. For approximately eighteen years until his death, the
Decedent lived with his girlfriend, Giannone, who had three children. Executor
is Giannone’s son.
In the winter and spring of 2017, the Decedent took anti-anxiety
medication. In March 2017, when the Decedent was seventy-eight years old,
he underwent chemotherapy treatment, which caused congestive heart failure
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and breathing difficulties. He contacted an attorney, John Conner, Esquire
(“Attorney Conner”), to prepare a will. Attorney Conner visited the Decedent
in his hospital room twice, a few days apart, and drafted a will (“March 2017
will”). This will bequeathed percentages of the Estate as follows: (1) thirty
percent each to Brother and Giannone; (2) fifteen percent to Tecce; (3) fifteen
percent to Tecce’s adult son, Alessandro Tecce (“Alessandro”); 1 and (4) the
remaining ten percent to be divided equally among the Decedent’s
grandchildren. At trial, the Respondents presented an unsigned copy of this
will.2 Subsequently, the Decedent began a different chemotherapy treatment.
The parties do not dispute that approximately three months later, on
Father’s Day, June 18, 2017, Tecce and the Decedent had an argument at the
Decedent’s home. Giannone, Brother, and Brother’s wife were present. At
trial, Brother testified that the day after, the Decedent told him the reason for
the argument: Tecce had previously asked the Decedent for money for
the first and last month’s deposit [to rent] a house in Narberth[.
The Decedent considered this request] until finding out that
[Tecce’s] primary home in Clifton Heights was being foreclosed,
which [she] did not tell him about. [Tecce] had been renting out
her primary house and with that rent money, she was renting an
additional apartment for herself in Wyn[ne]wood. [The Decedent]
relayed he was upset that she had three properties and he didn’t
know. [Brother testified] that . . . his father and sister . . . had
the blowup at the Father’s Day dinner. . . . [Brother was not] sure
of the amount, but was aware [the Decedent] was concerned
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1 At this time, Tecce’s two other children were minors.
2 Executor testified that he has not seen a signed copy of the March 2017 will.
See N.T., 8/16/23, at 86.
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about [Tecce’s] financial responsibility and would complain about
[Tecce] wanting money from him, especially after that Father’s
Day.
Orphans’ Court Opinion, 2/28/24, at 24 (citing N.T., 8/16/23, at 99-100).
Giannone testified that in early June 2017, Tecce discussed a lease first
with her, and then the Decedent. See id. at 13. Giannone did not know the
amount of money Tecce asked the Decedent for, although she heard the
Decedent ask Tecce how much money she had in her bank account. See id.
at 13-14. After Tecce left, the Decedent “was upset.” Id. at 13. Giannone
further stated that the Decedent “would confide in telling her how [Tecce]
needed to help herself,” and he “consistently” felt this way “well before 2017.”
Id. Subsequently, the Decedent told Tecce over the phone “that he was not
going to help her financially.” Id. Later, during the Father’s Day argument,
Tecce was upset and told the Decedent, “[Y]ou never did anything for me. I
always had to do it for myself,” and “Happy f[—]ing Father’s Day you
a[--]hole.” Id. at 14. The Decedent swore back at Tecce. Id. Giannone
testified: the argument lasted less than “a few minutes;” afterward, the
Decedent “was visibly shaking and crying;” and Giannone “was concerned she
might have to call the hospital, but after some time and taking a Xanax, he
calmed down.” Id.
At trial, Tecce denied asking the Decedent for money during the Father’s
Day visit. She testified: she did not know “how the argument started;” the
Decedent did not indicate “why he was angry with” her; and “[i]t just didn’t
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make sense [why] he was mad.” N.T., 11/1/22, at 51-52. Tecce stated: the
argument lasted “[a] minute or two;” the Decedent told her, “[F—] you;”
Tecce “was shocked” and also said “[F—] you;” and then she and Alessandro,
who was in the bathroom, left. Id. The Decedent did not appear to be angry
at anyone else. See id.
Several days later, the Decedent contacted Attorney Conner to revise
his will. Attorney Conner testified that he received a fax from the Decedent,
setting forth amendments to his March 2017 will. The fax included the
Decedent’s handwritten note:
Note: — My daughter has been a problem her entire life[.] On
Father’s Day she cussed me out after I spent 2½ months in the
hosp. [sic]. My son[, his wife, and Giannone were] present.
[Tecce] wanted me to bail her out financially — she has several
degrees and should be able to get a job [and] support herself.
This is not the first [unintelligible]. My daughter needs
professional help.
Fax from the Decedent to Attorney Conner, 6/28/17, Respondents’ Trial
Exhibit R-3.
Attorney Conner talked with the Decedent, “to clarify the ‘substantial
changes’” and to discuss “some of the challenges that could result from” a
new will. Orphans’ Court Opinion, 2/28/24, at 20. Attorney Conner drafted
the revised will, and the Decedent visited his office on June 29, 2017, to sign
it. The Decedent reiterated the reasons for the changes were “[t]hat he had
challenges with his relationship with his daughter,” and he discussed the
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Father’s Day argument. Id. Attorney Conner stated the Decedent “was not
agitated,” “seemed to care about [Tecce], but was upset and disappointed and
wanted to make sure she did not receive any of his estate,” and further stated
that Tecce “needed professional help.” Id. at 21. Attorney Conner did not
recall if he asked why the Decedent wished to make will revisions regarding
his grandchildren. See id. at 20. He advised the Decedent “to get rid of the
March 2017 will since it was revoked by the June 2017 will.” Id. at 21.
The new, June 2017 will removed Tecce and the grandchildren as heirs,
while increasing the testamentary shares to Brother and Giannone as follows:
sixty percent to Brother and forty percent to Giannone. Additionally, the will
named Giannone’s son, Executor, as the executor.
Three months thereafter, on September 30, 2017, the Decedent passed
away. The Register of Wills admitted the June 2017 to probate and granted
letters testamentary.
On January 17, 2018, Tecce commenced the instant action by filing in
the Orphans’ Court a citation sur appeal from the admission of the June 2017
will to probate. Tecce averred that when the Decedent executed the will, he
had a greatly impaired physical and mental condition and weakened intellect,
and Giannone and/or Brother exerted undue influence on him. 3 Tecce named
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3 Tecce’s two minor children and Alessandro were also named petitioners in
the petition for citation sur appeal. The record does not include any
withdrawal by them from this matter, but some of Tecce’s own subsequent
(Footnote Continued Next Page)
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Brother, Giannone, and Executor (collectively, “the Respondents”) as “parties
of interest.” Tecce’s Petition for Citation Sur Appeal, 1/17/18, at 6-7.
On June 1, 2022, the Orphans’ Court issued an order directing that all
discovery be concluded one week before the November 1, 2022 trial date —
or by October 25, 2022. On October 22, 2022, Tecce served on the
Respondents a notice of intent to serve a subpoena on Decedent’s primary
care physician, James Minella, M.D. (“Dr. Minella”), for the production of
medical records. See Respondents’ Objections to Notice of Intent to Serve
Subpoena, 11/9/22, at 1. As we discuss infra, pursuant to Pa.R.C.P.
4009.21(a), Tecce was required to wait at least twenty days before serving
the subpoena on Dr. Minella.
Trial commenced as scheduled on November 1, 2022. On November 9,
2022, the Respondents filed objections to Tecce’s notice of intent to serve a
subpoena on Dr. Minella. The Respondents averred: (1) Tecce had already
filed, in September 2022, a motion to extend the discovery deadline and to
postpone trial, which the Orphans’ Court denied; (2) Tecce knew Dr. Minella
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filings omitted some or all of her children as named petitioners, and at trial
and in this appeal, Tecce proceeded on her own behalf only. See also
Respondents’ Brief at 9 (claiming that Alessandro and the two minor children,
who have now reached majority, have declined to participate in this will
contest).
Additionally, we note Tecce’s petition also presented a claim that the
Decedent lacked testamentary capacity. She withdrew this claim at trial. See
N.T., 11/1/22, at 87.
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treated Decedent and could have served the notice of intent “at any time
during the almost five years in which the parties engaged in discovery;” and
(3) the deadline for concluding discovery had passed. Id. at 1-2. Pertinent
to the Orphans’ Court reasoning, the Respondents requested the Orphans’
Court to sustain their objections. Tecce did not file any response. On
December 1, 2022, the Orphans’ Court sustained the Respondents’ objections.
Tecce filed a motion for reconsideration, which the Orphans’ Court denied.
Meanwhile, the Orphans’ Court conducted additional trial proceedings
on January 30, April 21, and August 16, 2023. Tecce, Brother, and Giannone
testified as summarized above. Tecce further stated that after the Father’s
Day argument, she called and sent text messages to Giannone, but she did
not respond. See N.T., 11/1/22, at 62. Tecce did not see the Decedent again
until the week he died, after Brother advised her that the Decedent was in the
hospital. See id. at 62-63.
Tecce sought to present Terrance Baker, M.D. (“Dr. Baker”), as an
expert witness in the areas of geriatric medicine and weakened intellect. The
Respondents objected to Dr. Baker’s qualifications, arguing Dr. Baker did not
talk to or examine the Decedent at any time, nor review any of his medical
records from March through August 2017. See N.T., 8/16/23, at 52-53, 55.
The Orphans’ Court agreed and sustained the objection, thus precluding Dr.
Baker from testifying. See id. at 74.
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The Respondents presented the Decedent’s diary, which included the
following entries made in the weeks before and after the Father’s Day
argument: (1) “[M]y daughter wanted me to cash a CD;” (2) “[M]y daughter
sent me a text full of lies blaming her failures on me. She needs professional
help. Daughter is delusional;” (3) “Spoke with John Conner, attorney about
changes to my will;” and (4) “I and [Giannone] drove up to the Conner Law
Group in Jenkintown, PA. Made justified changes to my will. Nice day, was
nice to run my car. Paperwork in office.” Orphans’ Court Opinion, 2/28/24,
at 7-8. Tecce agreed that the latter entries were in the Decedent’s
handwriting, but she believed the diary was “unusual as [the Decedent
misspelled] a lot of words[,] used wrong grammar and . . . he usually did not
make mistakes like that.” Id. at 6, 8.
Attorney Conner testified about his interactions with the Decedent, as
discussed above. Attorney Conner also stated he “did not recommend [the
Decedent] to receive a mental status exam prior to executing a will,” nor
inquired whether “Giannone had any influence on him in the decision to
remove his daughter and grandchildren from his will.” Id. The Orphans’ Court
summarized Attorney Conner’s additional testimony as follows:
[H]e did not believe [the Decedent] was under anyone’s undue
influence. [H]e did not believe [the Decedent] was influenced by
. . . Giannone and her family because when [Attorney] Conner
asked [the Decedent] about the increase to the Giannone and
[Brother] shares, [the Decedent’s] answers were consistent with
what was in his fax. [“The Decedent] seemed strong. [He] didn’t
seem to me at any point in time during the two times I met with
him that he would be intimidated or unduly influenced by
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anybody. He was his own man. His body was beat up, but he
was strong.” . . .
Id. at 21 (citing 4/21/23, at 70-72). Attorney Conner also stated the
Decedent “was in better health” at their June 2017 meeting than their March
meetings. Id. at 20.
Finally, we recount that Attorney Conner testified he was permanently
disbarred from the practice of law, following his federal jury convictions of
wire fraud and obstruction of justice. Attorney Conner used a client’s credit
card without her permission, when he had a gambling addiction, and he
committed his crimes at “the same time that he was handling some of [the
Decedent’s] affairs, in March and April 2017.” Id. at 16.
Following the presentation of the evidence, the Respondents made an
oral motion for a compulsory nonsuit, arguing that Tecce failed to present
sufficient evidence establishing direct or indirect undue influence on the
Decedent. See N.T., 8/16/23, at 125-31. Subsequently, on September 12,
2023, the Orphans’ Court granted the motion for nonsuit, and thus directed
the Register of Wills to probate the Decedent’s June 2017 will. Tecce filed a
timely notice of appeal and she and the Orphans’ Court have complied with
Pa.R.A.P. 1925.
Tecce presents the following issues for our review:
A. Did the Court commit an error of law and/or abuse its
discretion when it granted Objections to [Tecce’s] Notice of
Intent to Serve Subpoena on December 1, 2022, based solely
upon [Tecce] not filing a response to the Objections[?]
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B. Did the Court abuse its discretion when it denied [Tecce’s]
Petition for Reconsideration/Motion Nunc Pro Tunc on January
6, 2023[?]
C. Did the Court commit an error of law and/or abuse its discretion
when it sustained the [Respondents’] objection to the
qualifications of [Tecce’s] medical expert, [Dr.Baker,] as to
[the] Decedent’s weakened intellect[?]
D. Did the Court err when it granted the [Respondents’] oral
motion for non-suit when [Tecce] had shown clear and
convincing evidence of both direct and indirect undue
influence[?]
Tecce’s Brief at 5 (issues renumbered).
In her first two issues, Tecce avers the Orphans’ Court erred and
violated Pa.R.C.P. 4009.21 in sustaining the Respondents’ objections to her
notice of intent to serve a subpoena on the Decedent’s primary care physician.
“When reviewing the propriety of a discovery order, this Court determines
whether the trial court committed an abuse of discretion.” Virnelson v.
Johnson Matthey Inc., 253 A.3d 707, 713 (Pa. Super. 2021). “The purpose
of the discovery rules is to ‘prevent surprise and unfairness and to allow a fair
trial on the merits.’” Id. (citation omitted).
Tecce’s arguments implicate the interpretation of rule 4009.21.
“[W]hen the issue before us involves ‘the proper interpretation of the language
of our rules of civil procedure,’ the question is a pure matter of law, and ‘our
standard of review is de novo.’” FedEx Corp. Servs. v. Costume Gallery,
Inc., 320 A.3d 129, 132 (Pa. Super. 2024) (citation omitted). Former
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Pennsylvania Rule of Civil Procedure 127, which was in effect at the time of
the objections,4 addressed the interpretation of the rules:
(a) The object of all interpretation and construction of rules
is to ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect
to all its provisions. When the words of a rule are clear and free
from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.
Pa.R.C.P. 127(a)-(b), rescinded Nov. 3, 2023, eff. Jan. 1, 2024. Additionally,
rule 126 provides: “The rules shall be liberally applied to secure the just,
speedy, and inexpensive determination of every action or proceeding to which
they are applicable.” Pa.R.C.P. 126(a).
Pennsylvania Rule of Civil Procedure 4009.21 governs a subpoena upon
a non-party for the production of documents:
(a) A party seeking production from a person not a party to
the action shall give written notice to every other party of the
intent to serve a subpoena at least twenty days before the date of
service. . . .
****
(c) Any party may object to the subpoena by filing of record
written objections and serving a copy of the objections upon every
other party to the action.
(d)
(1) If objections are received by the party intending
to serve the subpoena prior to its service, the subpoena
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4 Former rule 127 was rescinded effective January 1, 2024, and adopted with
some amendments as current Pennsylvania Rule of Judicial Administration
108. See Pa.R.J.A. 108(a)-(c).
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shall not be served. The court upon motion shall rule
upon the objections and enter an appropriate order.
Note: Subdivision (a) of this rule provides a twenty-day
notice period during which a subpoena may not be served.
(2) If objections are not received as provided in
paragraph (1), the subpoena may be served subject to the
right of any party or interested person to seek a protective
order.
Pa.R.C.P. 4009.21 (a), (c), (d)(1)-(2) (emphasis added).
In her first issue, Tecce avers the Orphans’ Court erred and abused its
discretion in sustaining the Respondents’ objections to her notice of intent to
serve a subpoena on Dr. Minella. First, Tecce avers the court’s ruling was
premature. She reasons that under rule 4009.21(d)(1), a trial court may only
rule on objections “after a motion to rule on the objections has been filed.”
Tecce’s Brief at 12 (emphasis omitted) (citing Piroli v. Lodico, 909 A.2d 849(Pa. Super. 2006)). Here, Tecce maintains, she did not file any such motion.
Additionally, on the merits, Tecce maintains that: (1) she “did not learn the
identity of [the] Decedent’s primary care physician until the deposition of the
interested witnesses and parties which were completed immediately prior to
the first date” of trial; and (2) the production of the medical records would not
have surprised or prejudiced the Respondents, who “had complete access to
the records.” Id. at 13-14. In Tecce’s related second issue, she contends the
Orphans’ Court erred in denying her motion for reconsideration.
In sustaining the Respondents’ objections, and denying Tecce’s
subsequent motion for reconsideration, the Orphans’ Court reasoned that her
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notice of intent to serve the subpoena was untimely. Tecce commenced this
action in January 2018. The Orphans’ Court pointed out that more than four
years later, it initially directed the parties to complete discovery by July 27,
2022, with trial scheduled for August 3, 2022. However, as summarized
above, in June 2022 the Orphans’ Court postponed the discovery deadline to
October 25, 2022, for a new November 1, 2022 trial date. The court found:
“Ample time was afforded both parties to be prepared for trial.” Orphans’
Court Opinion, 2/28/24, at 28. Three days before the discovery deadline,
however, Tecce served the Respondents with notice of her intent to subpoena
Dr. Minella. Pursuant to rule 4009.21(a), Tecce then had to wait twenty days
before serving the subpoena. See Pa.R.C.P. 4009.21(a). The Orphans’ Court
reasoned: “By the time . . . the subpoena could possibly have been
effectuated, the discovery deadline . . . would have terminated.” Orphans’
Court Opinion, 2/28/24, at 28 (unnecessary capitalization omitted). The court
found that ruling in Tecce’s favor “would have been an unfair prejudice to the
Respondents,” as well as violative of the discovery deadline order. Id. at 27.
With respect to Tecce’s claim that a court may rule on objections only upon a
party’s motion, the Orphans’ Court found that a party did file such a motion
— the Respondents’ objections “specifically ask[ed] for the court to respond.”
Id. at 28 (unnecessary capitalization omitted).
After review of the record and relevant law, we determine the Orphans’
Court did not abuse its discretion. See Virnelson, 253 A.3d at 713. First,
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we disagree with Tecce’s contention that under rule 4009.21, the court was
precluded from ruling on the Respondents’ objections unless she motioned for
the court to rule on it. Our review of the relevant law reveals no decisional
authority addressing this issue.5
Next, we consider the plain language of rule 4009.21. As stated above,
the Orphans’ Court found one party — the Respondents — did request the
court to rule on the objections, and this satisfied the requirement for a motion.
On appeal, Tecce does not address this reasoning. Our review of rule 4009.21
shows the only mention of a “motion” appears in subsection (d)(1): “If
objections are received by the party intending to serve the subpoena prior to
its service, the subpoena shall not be served. The court upon motion shall
rule upon the objections and enter an appropriate order.” Pa.R.C.P.
4009.21(d)(1) (emphasis added). Saliently, although the first sentence
focuses on the subpoenaing party, the second sentence, which includes the
reference to a “motion,” does not identify which party shall file it. See id. In
the absence of any such language, we decline to read a requirement into the
rule. See Pa.R.C.P. 127(b), rescinded (providing that “[w]hen the words of a
rule are clear and free from all ambiguity, the letter of it is not to be
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5 We reject Tecce’s reliance on Piroli, 909 A.2d 849.
Piroli made one passing
reference to rule 4009.21 — in summarizing that the plaintiff filed a notice of
intent to serve a subpoena on a medical treatment facility. See Piroli, 909
A.2d at 847. However, there was no discussion of the rule’s requirement for
a motion; instead, the issue concerned the applicability of the Peer Review
Protection Act, 63 P.S. §§ 425.1-425.4. See id.
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disregarded under the pretext of pursuing its spirit”). Accordingly, we
conclude rule 4009(d)(1): (1) provides merely that a trial court, “upon
motion,” shall rule on the objections; but (2) does not identify which party
shall file this motion. See Pa.R.C.P. 4009.21(d)(1). As stated by the Orphans’
Court, the final line of the Respondents’ objections was a request to the court
to “sustain” their objections, and this request satisfied the requirement for a
“motion.”6 See Objections to Notice of Intent to Serve Subpoena at 3.
On the merits, we find no abuse of discretion in the Orphans’ Court
finding that Tecce’s notice of intent to serve the subpoena was untimely. See
Virnelson, 253 A.3d at 713. Tecce does not dispute that if she had been
permitted to serve the subpoena on Dr. Minella, after the requisite twenty-
day waiting period, the discovery deadline would have already passed. While
Tecce maintained that she did not learn the name of the Decedent’s primary
care physician until depositions of unnamed “interested witnesses and
parties,” Tecce’s Motion for Reconsideration, 12/16/22, at unnumbered 3, the
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6 We also conclude there is no merit to Tecce’s additional arguments — that
she was not required to file a response to the Respondents’ objections because
the objections were “not filed in the form of a motion for protective order that
contained a notice to respond directed to” her. Tecce’s Brief at 12-13.
Rule 4009.21 makes one reference to a protective order in subsection
(d)(2): “If objections are not received [by the subpoenaing party], the
subpoena may be served subject to the right of any party or interested person
to seek a protective order.” Pa.R.C.P. 4009.21(d)(2) (emphases added).
Here, Tecce has made no claim that she did not receive the Respondents’
objections. Accordingly, subsection (d)(2) is not invoked and the seeking of
any protective order is not relevant.
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Respondents averred: (1) “[s]ince January 2019, the parties have engaged in
extensive discovery, including the production of thousands of pages of
documents, . . . depositions of party and non-party witnesses, and expert
reports;” and (2) in any event, Tecce “knew of Dr. Minella’s treatment of [the]
Decedent before his death.” Respondents’ Objections to Notice of Intent to
Serve Subpoena at 1-2. Upon this record, we do not disturb the Orphans’
Court finding, that permitting the subpoena on Dr. Minella after the discovery
deadline would have prejudiced the Respondents. See Virnelson, 253 A.3d
at 713. In light of all the foregoing, we find no abuse of discretion in the
Orphans’ Court sustaining the Respondents’ objections, nor in denying Tecce’s
motion for reconsideration. No relief is due on Tecce’s first and second issues.
In her third issue, Tecce asserts the Orphans’ Court abused its discretion
in sustaining the Respondents’ objections to the qualifications of her proposed
medical expert, Dr. Baker. We consider the applicable standard of review:
Our standard of review of a trial court’s decision to exclude expert
testimony is very narrow.
The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound discretion
of the trial court. . . . To constitute reversible error, an evidentiary
ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.
In re Estate of Byerley, 284 A.3d 1225, 1239 (Pa. Super. 2022) (“Estate
of Byerley”) (citation omitted). “Generally, relevant evidence is admissible
and irrelevant evidence is in admissible. Evidence is relevant if it has “any
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tendency to make a fact [of consequence] more or less probable than it would
be without the evidence.” Id. (citing Pa.R.E. 401).
In Estate of Byerley, a son challenged the probate of his ninety-one
year old father’s will, which granted the father’s companion a life estate in his
home. See id. at 1233. The son argued the companion exerted undue
influence over his father. See id. The son sought to present, as both a fact
and expert witness, a psychologist who examined the father sixteen months
after the execution of the will and twenty months after the father first met
with the attorney who drafted the will. See id. at 1232, 1240. The companion
filed a motion in limine to exclude the psychologist’s testimony and report,
citing the long passage of time between the will execution and the
examination. See id. at 1233. The Orphans’ Court rejected the son’s
response — that the psychologist’s “testimony would still be relevant despite
[this] timing” — and granted the motion in limine. Id. at 1234.
On appeal, this Court affirmed the Orphans’ Court’s ruling. See id. at
1240. We first noted that in “ascertaining the testator’s intention, a will is to
be construed as of the date of its execution.” Id. (citation omitted). We also
considered: “To the extent that weakened intellect may be ‘proven through
evidence more remote in time from the will’s execution,’ we understand the
term ‘remote’ to reference a timeframe prior to the will’s execution, not after,
as remote evidence of undue influence would precede the will’s execution.”
Id. (citation omitted and emphasis in original). This Court then concluded
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that the record supported the Orphans’ Court finding — that any testimony by
the psychologist, as either a fact or expert witness, “would not have been
relevant to the Orphans’ Court determination as to whether [the father] had
a weakened intellect because his single evaluation occurred sixteen months
after the date of the [w]ill’s execution and twenty months after [the father]
first met with” the scrivener attorney. Id.
We reiterate that in this matter, Dr. Baker did not talk to or examine
the Decedent, nor review any of his medical records in the months surrounding
his March 2017 and June 2017 wills. See N.T., 8/16/23, at 47. Dr. Baker did
review the Decedent’s medical records from September 2017, the month he
passed away, but Dr. Baker did not talk to any of the treating physicians. See
id. at 50. Additionally, Dr. Baker reviewed medical records concerning the
Decedent’s two prior surgeries, at unspecified times, and he reviewed
deposition transcripts provided by Tecce’s attorney. See id. at 33, 47-48.
On appeal, Tecce challenges the Orphans’ Court reasoning that: (1) Dr.
Baker was not qualified because he did not examine or have direct contact
with Decedent; and (2) Dr. Baker did not review “medical records
contemporaneous with the time period surrounding” the execution of the June
2017 will. Tecce’s Brief at 15. Tecce avers the Orphans’ Court reasoning
“more properly addresse[d] the weight to be given to the testimony, not its
admissibility.” Id. at 16.
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In precluding Dr. Baker as an expert witness, the Orphans’ Court found
that the information he reviewed would not support an expert opinion on the
Decedent’s mental state at the time he executed the June 2017 will. See
N.T., 8/16/23, at 79. The court reasoned that Dr. Baker relied on medical
history not related to that time period, and indeed, he could not even state
the dates of the Decedent’s prior surgeries. See id. at 78.
After our review, we conclude the Orphans’ Court did not abuse its
discretion in precluding Tecce’s presentation of Dr. Baker as an expert witness.
See Estate of Byerley, 284 A.3d at 1239. The relevant period for
considering whether the Decedent had a weakened intellect was the time
when he executed the June 2017 will. However, Dr. Baker did not review any
medical records from that period. Additionally, whereas the psychologist in
Estate of Byerley examined the father sixteen months after he executed his
will, here Dr. Baker did not examine or even talk to the Decedent at any time.
See id. at 1240. On this record, we conclude the Orphans’ Court did not
abuse its discretion in finding Dr. Baker’s testimony would not be relevant to
Tecce’s claim — that the Decedent had a weakened intellect when he executed
the June 2017 will. Accordingly, we determine no relief is due on Tecce’s third
issue.
In Tecce’s final issue, she avers the Orphans’ Court erred in finding she
did not present sufficient evidence of undue influence on the Decedent and in
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granting nonsuit in favor of the Respondents. With respect to a nonsuit, we
consider:
A motion for compulsory non-suit allows a defendant
to test the sufficiency of a plaintiff’s evidence and may
be entered only in cases where it is clear that the
plaintiff has not established a cause of action; in
making this determination, the plaintiff must be given
the benefit of all reasonable inferences arising from
the evidence. . . .
“When we review the grant of a non-suit, we must resolve all
conflicts in the evidence in favor of the party against whom the
non-suit was entered. . . . ”
Gregury v. Greguras, 196 A.3d 619, 625 (Pa. Super. 2018) (citations
omitted).
We also consider the applicable standard of review for an Orphans’ Court
adjudication of an appeal from probate:
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
[Orphans’ C]ourt’s findings of fact were based upon
legally competent and sufficient evidence and whether
there is an error of law or abuse of discretion. . . .
We “will not lightly find reversible error and will reverse an
Orphans’ Court decree only if the [O]rphans’ [C]ourt applied an
incorrect rule of law or reached its decision on the basis of factual
conclusions unsupported by the record.”
The Pennsylvania Supreme Court has repeatedly held that the
“best evidence of a testator’s intent is the testamentary document
itself and the testator’s arrangements with his attorney.”
Estate of Byerley, 284 A.3d at 1236-37 (citations omitted).
This Court has stated:
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Testamentary capacity exists when the testator has
intelligent knowledge of the natural objects of his bounty, the
general composition of his estate, and what he or she wants done
with it, even if his memory is impaired by age or disease. “Neither
old age, nor its infirmities, including untidy habits, partial loss of
memory, inability to recognize acquaintances, and incoherent
speech, will deprive a person of the right to dispose of his own
property.” In determining testamentary capacity, a greater
degree of proof of mental incapacity is required than would be
necessary to show the inability to conduct one’s business affairs.
Finally, testamentary capacity is to be ascertained as of the date
of execution of the contested document.
In re Estate of Smaling, 80 A.3d 485, 494 (Pa. Super. 2013) (“Estate of
Smaling”) (citations omitted).
Our Supreme Court has addressed undue influence as follows:
The word “influence” does not refer to any and every line of
conduct capable of disposing in one’s favor a fully and self-
directing mind, but to control acquired over another that virtually
destroys his free agency. . . . In order to constitute undue
influence sufficient to void a will, there must be imprisonment of
the body or 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.
Id. at 498 (citation omitted).
. . . 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
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again to the proponent to produce clear and convincing evidence
which affirmatively demonstrates the absence of undue influence.
Id. at 493 (citations and footnote omitted).
With respect to the prong of confidential relationship, this Court has
explained:
[A] confidential relationship exists “when the circumstances make
it certain that the parties did 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.” “A
confidential relationship is created between two persons when it
is established that one occupies a superior position over the
other — intellectually, physically, governmentally, or morally —
with the opportunity to use that superiority to the other’s
disadvantage.” . . .
Id. at 498 (citations omitted).
Tecce asserts the Orphans’ Court erred in granting the Respondents’
motion for non-suit, where she presented clear and convincing of direct undue
influence. In support, Tecce contends: (1) “[t]he record evidence was clear
that [she] was an active participant in [Decedent’s] life” and medical care; (2)
she and Decedent had an argument on Father’s Day, in which they “cursed at
each other;” (3) “Giannone testified that Decedent’s emotions and rage were
so elevated that he was convulsing so much that she considered calling an
ambulance;” (4) Giannone admitted that in the following days, she “parrot[ed]
back to the Decedent reasons why [Tecce] was ungrateful, entitled[,] and
spoiled[;]” (5) when Giannone overheard Decedent contacting Attorney
Conner to revise his will, Giannone “exploited [his] vulnerability” and “made
certain that [he] remained fixed in his anger” at Tecce; (6) Giannone drove
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Decedent to Attorney Conner’s office, and (7) Giannone continued “to isolate
Decedent from [Tecce] until the very last week of his life and [he] was
hospitalized and bedridden.” Tecce’s Brief at 18-19 (unnecessary
capitalization omitted). Finally, Tecce contends that Giannone’s share of
Decedent’s estate “substantially increased” under the new will. Id. at 19.
Additionally, Tecce acknowledges the Orphans’ Court “put significant
weight on” Attorney Conner’s testimony, but asserts his “testimony should not
have been accepted.” Id. Tecce maintains that Attorney Conner has been
disbarred from the practice of law and convicted of wire fraud and obstruction
of justice, for “crimes stemm[ing] from a . . . gambling addiction during the
same period he was handling Decedent’s affairs.” 7 Id.
We first conclude no relief is due on Tecce’s claim that the Orphans’
Court should not have accepted or given weight to Attorney Conner’s
testimony. As stated above, in a will contest, the Orphans’ Court determines
the credibility of the witnesses, and we do not disturb its findings. See Estate
of Byerley, 284 A.3d at 1236-37. The Orphans’ Court was free to weigh the
circumstances of Attorney Conner’s federal convictions and disbarment, as
____________________________________________
7 Tecce further contends the Orphans’ Court improperly excluded expert
medical testimony by Dr. Baker, which would have showed indirect undue
influence. Tecce’s Brief at 19. As we have concluded above that no relief is
due on Tecce’s challenge to the exclusion of Dr. Baker’s testimony, this claim
is similarly meritless.
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well as his testimony about the Decedent and their interactions in preparing
the two wills. The court concluded Attorney Conner
credibly and convincingly testified, in great detail, that during
his representation of [the Decedent] prior to and on the date of
the June 2017 Will’s execution, [the] Decedent showed no signs
of weakened intellect, including manifestations of confusion,
forgetfulness or disorientation; appeared to be of sound mind; and
was able to understand completely and freely what he was doing.
Orphans’ Court Opinion, 2/28/24, at 32 (emphasis added). On appeal, we do
not disturb these findings.
With respect to the merits of Tecce’s undue influence claim, we observe
that the Honorable Kathrynann Durham has authored a comprehensive and
well-reasoned opinion, with citations to the record and relevant authority.
After a careful review of the parties’ briefs and the certified record, we affirm
on the basis of the Orphans’ Court opinion as to Tecce’s undue influence claim.
See Orphans’ Court Opinion, 2/28/24, at 3-22 (reviewing the extensive
testimony by Tecce, Giannone, and Attorney Conner as to their interactions
with the Decedent and observations of his mental state), 32 (finding Attorney
Conner was credible in testifying that the “Decedent showed no signs of
weakened intellect . . . and was able to understand completely and freely what
he was doing”), 40 (finding that Tecce’s only testimony regarding the
Decedent’s alleged weakened intellect was that he “was misspelling a lot of
words[,] used wrong grammar and that he usually did not make mistakes like
that”), 41-42 (finding “there was no evidence presented that [the] Decedent
was in a state of persistent confusion, forgetfulness, or disorientation[, nor
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that he] was unable to manage his affairs,” and further finding “there was a
lack of clear and convincing evidence” of a confidential relationship between
the Decedent and Giannone), 42 (acknowledging that while Tecce “is upset”
with the provisions of the June 2017 will, a parent owes no obligation to his
children to leave them property, and concluding that “[w]ithout clear and
convincing evidence that undue influence existed, the Orphans’ Court must
honor [the] Decedent’s voluntary decision regarding the June 2017 Will”). In
light of the Orphans’ Court thorough review and apt discussion of the relevant
law, we do not disturb the court’s finding that Tecce failed to present sufficient
evidence to support her undue influence claim. See Gregury, 196 A.3d at
625; see also Estate of Smaling, 80 A.3d at 493.
As we conclude that no relief is due on any of Tecce’s issues, we affirm
the Orphans’ Court decree granting nonsuit in favor of the Respondents and
directing that the Decedent’s June 2017 will be probated. The parties are
instructed to attach a copy of the Orphans’ Court February 28, 2024 opinion
to all future filings of this memorandum decision.
Decree affirmed.
Date: 11/18/2024
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Circulated 10/29/2024 10:34 AM