In re Estate of Helfant v. Clark Capital Management Group, Inc., CIVIL ACTION NO. 99-CV-6642 (E.D. Pa. 10/__/2000)
| Decision Date | 01 October 2000 |
| Docket Number | CIVIL ACTION NO. 99-CV-6642.,CIVIL ACTION NO. 00-1026. |
| Parties | IN RE: ESTATE OF NORMAN A. HELFANT LITIGATION v. CLARK CAPITAL MANAGEMENT GROUP, Inc., Harry J. Clark, Clark Capital Management Group, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
The Estate of Norman A. Helfant brings this action for money damages against Clark Capital Management Group under theories of breach of contract, conversion, fraud, and civil conspiracy and under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1.
The court has jurisdiction over the parties to this action by virtue of diversity of citizenship, 28 U.S.C. § 1332(c)(2) and the jurisdictional amount is satisfied, 28 U.S.C. § 1332(b).
The present controversy, herein addressed, involves conflicting claims within the plaintiffs' group as to who is the proper representative of the Estate of Norman A. Helfant as of this time. George Vishnesky, the executor of the estate under the will, contends that a document granting an alleged irrevocable power of attorney to a third person, as well as other documents, purportedly derived from that original 1999 power of attorney, including a retainer agreement with an attorney, are all null and void and must be declared revoked by this court. For the reasons that follow, the court agrees.
George Vishnesky has filed motions to revoke (a) an August 11, 1999 Power of Attorney to Agata Saczuk-Chmielewski; (b) a Legal Representation Agreement executed on or about December 28, 1999 by Henry and Agatha Chmielewski, George Vishnesky, and Douglas Lally, Esquire, and (c) a subsequent Irrevocable Assignment, Release of Claims and Irrevocable Power of Attorney signed by Henry Chmielewski, Agatha Saczuk-Chmielewski, and George Vishnesky.
A hearing was held on June 20, 2000 where testimony was taken. Briefs were subsequently filed along with a transcript of the proceedings, and videotapes and the transcripts of testimony of several witnesses who could not attend the hearing. The parties agree that the questions presented are matters of equity committed to the sound discretion of the court.
The court makes the following findings of fact:
Norman Helfant ("Helfant") once worked for Clark Capital Management ("Clark Capital"), an investment management firm, and received 110 shares of Clark Capital shares as part of his compensation. (Stock Certificates, Exhibits in Connection with June 20, 2000 Hearing ("Exs.") Tab 2).
In early October 1997, Helfant was found dead from a bullet wound to the head, an act that was treated by the authorities as a suicide. (Helfant Obituary, Exs. Tab 4).
George Vishnesky ("Vishnesky"), a long time friend of Helfant, was appointed executor of the Helfant Estate pursuant to Helfant's Last Will and Testament dated January 8, 1997. (Helfant's Will, Exs. Tab 5 at 5).
Helfant's will was executed in New Jersey and his estate was probated in New Jersey. (Surrogate's Letter, Exs. Tab 5 at 1).
Helfant's will left several specific bequests to various individuals and named Vishnesky and David Fox ("Fox"), Helfant's companion, residual beneficiaries. (Helfant's Will, Exs. Tab 5 at ¶ 8).
Vishnesky distributed the assets of Helfant's estate according to the terms of Helfant's will; however, Helfant's Clark Capital stock was not distributed during the liquidation of the estate. (Vishnesky Tr. at 17).
Henry Chmielewski had been a salesman in a European office of Clark Capital and knew Norman Helfant through their mutual employment at Clark Capital. (Vishnesky Tr. at 15). Chmielewsky had bitter feelings toward Harry Clark, the founder and Chief Executive Officer (CEO) of Clark Capital, and wanted to take control of Clark Capital. (Id. at 15-16).
Henry Chmielewski's wife, Agata Saczuk-Chmielewski, is a citizen of Eastern Europe who speaks conversational English only haltingly. (Douglas Lally, Esq. Tr. at 12). Both attorneys who dealt with her, Mark Sheppard, Esq. ("Sheppard") and Douglas Lally, Esq. ("Lally") questioned her English proficiency. Sheppard stated that he (Hr'g Tr. at 30). Lally noted that she does obviously pause for word choice. (Lally Tr. at 12).
On August 11, 1999, Henry Chmielewski convinced Vishnesky to sign a power of attorney which he drafted, that assigned to his wife, Agata Saczuk-Chmielewski, "full and complete power and authority to act" on behalf of the Helfant Estate as to: (a) Helfant's securities in Clark Capital; (b) any obligations of Clark Capital owed to the Helfant Estate; (c) any claims or causes of action that the Estate may have against Clark Capital. (Power of Attorney, Exs. Tab 6).
Henry Chmielewski further convinced Mr. Vishnesky in August and September 1999 to spend $5,000 on various lawyers to investigate claims against Clark Capital. (Copies of Checks, Exs. Tab 7).
Around August or September 1999, Henry Chmielewski, without Vishnesky's permission, took the Clark Capital stock certificates from Helfant's former house and still has control over them. (Vishnesky Tr. at 16-17).
On October 21, 1999, Vishnesky suffered a severe cerebella hemorrhage, a type of "stroke". (Richman Tr. at 11). Dr. Mitchell Richman,("Dr. Richman"),1 Vishensky's current treating physician, gave an uncontradicted medical opinion as to the nature, effect, and duration of the stroke and stroke sequella. The court credits that testimony in its entirety.
Vishnesky was hospitalized between October 21, 1999, and October 30, 1999 for acute care related to his cerebral hemorrhage. (Cheney Tr. at 7).
From October 31, 2000, until December 3, 2000, Vishnesky received rehabilitative care secondary to his stroke. (Id. at 8-9).
On December 3, 2000, Visnesky returned to his home where he was cared for by his companion, Richard Cheney ("Cheney").
In December when Vishnesky returned home, his attention span was extremely short, he would forget that he was holding a piece of paper, and he could not balance a checkbook. (Cheney Tr. at 14, 34; Vishnesky Tr. at 25).
Dr. Richman began treating Vishnesky on December 9, 1999, and also examined Vishnesky on or around the following dates: January 10, 2000; January 18, 2000; late January, 2000; February 11, 2000; early March, 2000; March 15, 2000; April 5, 2000; May 18, 2000; May 22, 2000; June 7, 2000. (Richman Tr. at 19-21).
Dr. Richman also had telephone conversations with Vishnesky between December 9, 1999, and January 10, 2000, to adjust his medication. (Id. at 20).
In addition, Dr. Richman was familiar with all medical records pertaining to Vishnesky's hospitalization and discharge. (Id. at 12-13).
Dr. Richman testified competently to the severity of Vishnesky's stroke. The doctor opined that in the case of an intercerebral hemorrhage, such as the one that Vishnesky suffered, blood escapes from a blood vessel and bleeds into the brain itself. A CAT scan indicated that in Vishnesky's case the bleeding was large. (Id. at 16). Dr. Richman pointed out that the hospital records showed an accumulation of blood in the brain, evidenced by a "right upward gaze." (Id.).
As a further indication of the severity of the stroke, Dr. Richman noted that Vishnesky was admitted to the intensive care unit, with the attendance of a neurosurgeon who administered two intravenous medications to lower his blood pressure, and where he required artificial feeding tubes to compensate for his inability to swallow. (Id. at 16).
Dr. Richman recounted that when Vishnesky came under his care, his short-term memory was so impaired that the doctor had to rely on Cheney's recollection of what happened involving the stroke. (Id. at 18, 19).
Dr. Richman began treating Vishnesky on December 9, 1999. On that day, Vishnesky had no memory of anything that happened around the time of the stroke and totally depended on Cheney for all of his daily physical needs, such as feeding and medication administration. (Richman Tr. at 18-19). Dr. Richman, upon examination, found Vishnesky in the same condition on January 10, 2000. As of January 18, 2000, Vishnesky still required the assistance of a tube for feeding. (Id. at 20).
Dr. Richman opined that between December 3, 1999 and February 11, 2000, Vishnesky did not possess the mental capacity to make an informed judgment about a legal document or to enter into a legally binding agreement due to the cerebral hemorrhage suffered on October 21, 1999.
Henry Chmielewski and Agata Saczuk-Chmielewski (collectively the "Chmielewski's") had actual knowledge of the fact of Vishnesky's stroke because they visited Vishnesky on several occasions and spoke frequently to Cheney about Vishnesky's condition. (Cheney Tr. 8-9; Vishnesky Tr. at 23). They may not have appreciated the severity of the stroke.
In the first or second week of October 1999, the Chmielewski's tried to retain Mark Sheppard, Esq. to pursue a claim against Clark Capital on the behalf of the Helfant Estate. (Hr'g Tr. at 28-29). In trying to retain Sheppard, Henry Chmielewski showed Sheppard the August 1999 Power of Attorney to Agata Saczuk-Chmielewski and the original share certificates for Helfant's Clark Capital stock. (Id. at 29, 33-34). Because the shares at issue belonged to the Helfant Estate, Sheppard requested that he meet with Vishnesky, the executor of the estate. After Henry Chmielewski denied Sheppard's several requests to meet with Vishnesky, Sheppard terminated his legal representation of the Helfant Estate in December, 1999. (Id. at 30-34).
On December 24, 1999, the Chmielewski's signed a Legal Representation Agreement (the "Representation Agreement") which purports to retain Douglas Lally, Esq. to represent the Helfant Estate without the legal consent of Vishnesky. (Legal Representation Agreement, Exs.8 at 3...
To continue reading
Request your trial