In re Estate of Fritts

• Decision Date: 17 August 2006
• Citation: 906 A.2d 601
• Parties: In re ESTATE OF Albena M. FRITTS. Appeal of Ralph Fritts.
• Court: Pennsylvania Superior Court

906 A.2d 601

In re ESTATE OF Albena M. FRITTS.

Appeal of Ralph Fritts.

Superior Court of Pennsylvania.

Argued April 5, 2006.

Filed August 17, 2006.

COPYRIGHT MATERIAL OMITTED

Keith Welks, Harrisburg, for appellant.

Steve N. Goudsouzian, Easton, for appellee.

BEFORE: STEVENS, GANTMAN and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Ralph Fritts, appeals from the order of the Northampton County Court of Common Pleas, Orphans' Court Division, dismissing his action to set aside the testamentary dispositions of the decedent, Albena M. Fritts. We affirm, and find that despite having been entered prior to the effective date of Pa.R.A.P. 311(a)(8), the order is appealable, having disposed of all parties and claims and ended the probate proceedings.

¶ 2 Albena died on March 23, 2004, at the age of 92. Her husband, Charles Martin Fritts, Appellant's brother, had died in 1980. The couple married in 1955, but had no children. Appellant and Charles inherited significant stock portfolios from their mother, who died sometime prior to 1980. Albena and her husband decided that if she outlived him, she would retain the stock portfolio until her death, at which time Charles' inheritance would return to the Fritts family by operation of Albena's will. On August 21, 1997, she executed a will leaving 35% of her estate to Appellant, a bequest which she believed would adequately convey Charles' family money back to the Fritts. The will also left 40% of her estate to niece Shirley Blomquist,¹ 15% to Bernice Mekolites,² and 10% to niece Gloria Gardner.

¶ 3 Appellant left Pennsylvania in 1978, but continued to visit Albena twice a year and maintained regular phone contact with her for the next twenty years. On December 4, 1997, Appellant arrived at Albena's home on one of his semi-annual visits, and discovered an unpaid bill from Nicholas R. Sabatine, Esq., who had prepared Albena's most recent will in August, 1997. Appellant took Albena to Attorney Sabatine's office and voiced his concern for Albena's health and finances. Attorney Sabatine spoke with Albena alone, at which time she expressed her wish that Appellant assume control of her finances. After determining that Albena was coherent and rational, Attorney Sabatine prepared a power of attorney naming Appellant as attorney-in-fact. Albena executed the power of attorney and then immediately visited Dr. McEvoy, a physician whom Attorney Sabatine had suggested in response to Appellant's concerns about Albena's health. Dr. McEvoy examined Albena twice in December of 1997.

¶ 4 Appellant closed several of Albena's bank accounts once he gained power of attorney, and transferred her funds to a higher-yielding brokerage account. Albena was present for these changes and Appellant immediately informed her of what would happen to her old accounts as a result. At this time, Appellant wrote Shirley, explaining the alterations to Albena's finances. On March 7, 1998, Albena received a notice from one of her former banks indicating an account balance of $0. Albena did not remember that Appellant had closed her old accounts and became confused and upset. Rose Fashano, a neighbor who looked after Albena on a regular basis, was present in Albena's home and suggested that Appellant may have transferred her funds to a different location. Shirley arrived at the house but did not recall Appellant's letter advising her of the changes he had made to Albena's finances. Shirley therefore failed to remind Albena that Appellant had properly transferred her money to new accounts, which explained why statements from Albena's former banks were reflecting account balances of $0. The police were called and suggested that Albena and her family contact an attorney.

¶ 5 Shirley took Albena to see Karl Kline, Esq., on March 9, 1998. Albena explained that because she was upset with Appellant for changing her finances, she wished to remove him from her will and to make Shirley her attorney-in-fact. Attorney Kline determined that Albena possessed testamentary capacity and drafted a new will excluding Appellant and shifting the bulk of his former bequest to Shirley, whose portion of the estate increased from 40% in the will executed August 21, 1997 to 61.5% in the will executed on March 9, 1998.³ A week later, Attorney Kline informed Appellant that Albena had revoked his power of attorney and designated Shirley as her new attorney-in-fact.

¶ 6 On March 25, 1998, while Shirley was visiting Albena, Appellant and Attorney Sabatine arrived unannounced with some documents for Albena to sign. Albena could not recall who Attorney Sabatine was, and he left without securing her signatures on any of the documents. Appellant, Shirley, and Albena decided that it was best for Shirley to serve as Albena's attorney-in-fact, and agreed that Albena was coherent and understood the decision she had made.

¶ 7 After meeting privately with Albena the following week, Attorney Kline prepared another form, naming Shirley as attorney-in-fact, that Albena executed on March 31, 1998. Because of Appellant's surprise appearance the week before, Attorney Kline was concerned that Appellant might again visit Albena without warning, find her alone, and press her to sign documents that could restore his power of attorney or perhaps his share of the estate. More than a month later, Attorney Kline met again with Albena, this time to execute an irrevocable trust and a pour over will intended to insulate her further from any future actions Appellant might take to restore his share of the estate or power of attorney. The pour over will executed on May 8, 1998 contained identical dispositions to the will executed on March 31st.

¶ 8 Albena died in March of 2004. Letters Testamentary were granted in accordance with her May 8, 1998 will. Appellant petitioned the Orphans' Court to set aside her last will and testament as the product of undue influence. A non-jury trial was held on January 26 and 27, 2005, and further testimony was taken by way of deposition on February 23rd. The Orphans' Court found Appellant did not carry his burden of proving two of the three necessary elements of undue influence, and accordingly dismissed the petition to set aside the will dated May 8, 1998. This appeal followed.

¶ 9 Appellant submits two issues on appeal:

IS A PRIMA FACIE CASE OF UNDUE INFLUENCE ESTABLISHED WHERE UNCONTROVERTED EVIDENCE DEMONSTRATED THAT A DECEDENT HAD BEEN DIAGNOSED WITH MILD TO MODERATE DEMENTIA, WAS UNABLE TO RECALL OR COMPREHEND SIGNIFICANT RECENT FINANCIAL TRANSACTIONS SHE CONDUCTED, WAS UNABLE TO RECALL HER RELATIVE AND HER ATTORNEY BEING INVOLVED IN THOSE TRANSACTIONS; AND DEMONSTRATED THAT THE DECEDENT WAS ELDERLY AND WHOLLY DEPENDENT UPON A NIECE WHO SELECTED NEW COUNSEL FOR DECEDENT, GAINED DECEDENT'S POWER OF ATTORNEY, AND THEN BENEFITED SUBSTANTIALLY FROM THE REVISED WILL THAT THE NEW ATTORNEY PREPARED FOR DECEDENT?

DID THE BENEFICIARY OF THE ALLEGED UNDUE INFLUENCE DISPROVE SUCH INFLUENCE WHEN SHE FAILED TO OFFER ANY CREDIBLE EXPLANATION FOR A PATTERN OF MISREPRESENTATIONS AND DECEPTIONS DESIGNED TO INCREASE HER INHERITANCE?

(Appellant's Brief at 4).

¶ 10 As a preliminary matter, we must determine whether the Orphans' Court's order of July 1, 2005 dismissing Appellant's claim is appealable. We examine the issue of appealability sua sponte because it affects our jurisdiction over the case. In re Estate of Cherwinski, 856 A.2d 165 (Pa.Super.2004) (citation omitted). Pa.R.A.P. 341(a)-(b)(1) provides that parties may appeal only from final orders of the trial court, defining a final order as, inter alia, any order that disposes of all claims and parties. In re Miscin, 885 A.2d 558, 561 (Pa.Super.2005) (citation omitted). Prior to 2004, this Court typically permitted immediate appeals from probate orders determining the validity of a will or trust. See In re Estate of Janosky, 827 A.2d 512 (Pa.Super.2003); In re Estate of Luongo, 823 A.2d 942 (Pa.Super.2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 (2003). However, on February 26, 2004, a panel of this Court ruled that interlocutory orders from the Orphans' Court were not appealable under Rule 341(b). In re Estate of Schmitt, 846 A.2d 127, 129-30 (Pa.Super.2004). In Schmitt, the will contestant appealed from an Orphans' Court order striking his caveat to the will and admitting the will to probate. Id. at 128. We reasoned that because the Orphans' Court order was interlocutory in nature, it was not final and appealable under Rule 341(b). Id. at 129. We quashed the appeal, concluding that "`[i]n order to avoid piecemeal litigation, no appeal will be permitted from an interlocutory order unless specifically provided for by statute.'" Schmitt, supra at 129 (quoting In re Estate of Borkowski, 794 A.2d 388, 389 (Pa.Super.2002)).

¶ 11 In response to Schmitt, our Appellate Court Procedural Rules Committee amended Rule 311 specifically to permit immediate appeals from orders of the Orphans' Court determining the validity of a will or trust, despite the fact that these orders are often interlocutory. See Pa. R.A.P. 311(a)(8), Explanatory Comment-2005. Although the amendment was adopted on June 29, 2005, it did not become effective until September 14, 2005. The instant Orphans' Court order was filed on July 1, 2005, prior to the effective date of the amended rule. Accordingly, this case is still bound by the ruling of Schmitt. However, the instant facts are distinct from those of Schmitt and its progeny, such as Miscin, supra (quashing appeal from Orphans' Court order that did not dispose of appellant's claim but merely refused to consider petition on merits while appellee's involuntary commitment was in place); thus we find that the order dismissing Appellant's action was final and appealable under Rule 341(b).

¶ 12 Most notably, the Orphans' Court order of July 1, 2005 disposes of all parties. See Pa.R.A.P. 341(b)(1). The appellant in Schmitt appealed from an order admitting the...