Est. of Joseph T. Roche, Sr., Appeal of: Campenni

• Court: Superior Court of Pennsylvania
• Decided: October 27, 2023
• Docket: 1377 MDA 2022
• Status: Unpublished

Opinion

J-A16006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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 : : APPEAL OF: SUZANNE CAMPENNI : : : : : 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. J-A16006-23

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

____________________________________________

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

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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