Ettorre, M. v. Ettorre, F. ( 2018 )

J-A29016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIANN N. ETTORRE, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
F. DAVID ETTORRE,
Appellee No. 3703 EDA 2016
Appeal from the Decree October 25, 2016
in the Court of Common Pleas of Chester County
Civil Division at No.: 1515-1107
BEFORE: LAZARUS, J., PLATT, J.,* and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 30, 2018
Appellant, Mariann N. Ettorre,1 appeals from the decree of October 25,
2016, which denied the petition sur appeal from probate in this will contest.
For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter from
the orphans’ court’s opinion of February 23, 2017.
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* Retired Senior Judge assigned to the Superior Court.
1 This Court takes judicial notice that Appellant died in 2017, post-argument.
See Diocese of Orange, Catholic Cemeteries, http://www.occem.org/search-
for-a-loved-one/location/?pid=802 (last visited Apr. 13, 2018). Counsel for
Appellant has not filed a suggestion of death nor sought substitution of parties
pursuant to 20 Pa.C.S.A. § 3372. This is of no present matter, because the
substituting of Appellant’s personal representative would not alter our
disposition in this matter. See also Pa.R.A.P. 502(a).
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This is a will contest regarding the February 8, 2013 [w]ill
(“2013 [w]ill”) of Frank J. Ettorre (“Mr. Ettorre”)[,] who died on
May 31, 2015. Mr. Ettorre was the father of three children, Francis
David Ettore (“David”), Mariann Ettorre ([Appellant]), and Elaine
Ettore Keno (“Ms. Keno”). The 2013 [w]ill left Mr. Ettorre’s estate,
less one dollar for each daughter, to David.
David, the executor of Mr. Ettorre’s estate, offered the 2013
[w]ill for probate and was granted [l]etters [t]estamentary on
June 15, 2015. On August 12, 2015, [Appellant] filed an [a]ppeal
from [p]robate, (“[a]ppeal from [p]robate") and [p]etition for
[c]itation [s]ur [a]ppeal from [p]robate (“Petition”). On August
18, 2015, Ms. Keno also filed an appeal from probate and a
petition for citation for sur appeal from probate. [Appellant] and
Ms. Keno’s filings asserted that Mr. Ettorre lacked testamentary
capacity and that the 2013 [w]ill was the result of fraud and undue
influence.
Following a significant amount of preliminary matters and
litigation, a court hearing was held on October 24, 2016 on the
August[] 2015 appeals and petitions, as well as other filings.[2]
* * *
In approximately January 2013, David contacted Thomas
Wyler, Esquire (“Mr. Wyler”) inquiring if Mr. Wyler would make a
professional visit to Mr. Ettorre at Mr. Ettore’s house. Mr. Wyler
confirmed his willingness to meet at the residence and invited Mr.
Ettore to telephone him. Soon thereafter, Mr. Ettorre telephoned
Mr. Wyler, indicated that he wanted to do some estate planning
and made an appointment with Mr. Wyler to discuss that topic
with him.
Not long after his telephone conversation with Mr. Ettorre,
Mr. Wyler traveled to Mr. Ettorre’s house, located at 782 Hickory
Lane, Berwyn, PA (“Mr. Ettorre’s residence”) to meet with him.
Mr. Ettorre was friendly, pleasant and happy to see Mr. Wyler.
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2 The record reflects that Appellant did not appear at trial but her counsel
appeared and called witnesses and presented evidence on her behalf. (See
N.T. Trial, 10/24/16, at 15).
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During this initial consultation, Mr. Wyler met privately with
Mr. Ettorre, outside the presence of David, and discussed Mr.
Wyler’s preparation of a will for Mr. Ettorre. Mr. Ettorre stated
that he wanted to provide for David, who had been living with him
and caring for him, to make sure that David was able to obtain
Mr. Ettorre’s residence. Mr. Ettorre also spoke at length regarding
his daughters, Ms. Keno and [Appellant].
In late January or early February 2013, Mr. Wyler mailed a
draft of a will to Mr. Ettorre in accordance with his conference with
him. Shortly thereafter, Mr. Ettorre arranged with Mr. Wyler to
sign the will at Mr. Ettorre’s residence.
On February 8, 2013, Mr. Wyler and Mr. Ettorre’s dentist,
Dennis Cerasoli (“Dr. Cerasoli”), visited with Mr. Ettorre at Mr.
Ettorre’s residence to witness Mr. Ettorre sign the 2013 Will.
On February 8, 2013, in Mr. Wyler and Dr. Cerasoli’s
presence, Mr. Ettorre discussed his desire to provide David with
his estate. Mr. Ettorre understood that the natural object of his
bounty consisted of his three children and knew the extent of his
estate. Mr. Ettorre also described the reasons for his
estrangement from his daughters, indicating that Ms. Keno was
abusive toward him and that [Appellant] had wrongly obtained
monies from him during a real estate transaction.
Just prior to the execution of the 2013 [w]ill, Mr. Wyler
“videotaped” Mr. Ettorre, who confirmed during the recording that
the terms of the will accurately stated his testamentary intentions.
Mr. Wyler credibly testified that in his opinion, having been
the scrivener of hundreds of wills, the 2013 [w]ill accurately
reflected how Mr. Ettorre desired to leave his estate. He further
credibly opined that Mr. Ettorre was of sound mind, had
testamentary capacity and was free of undue influence.
Dr. Cerasoli credibly testified that he had been Mr. Ettorre’s
dentist since approximately the late 1990s until the time of Mr.
Ettorre’s death in May of 2015 and always felt when he made
house calls to see Mr. Ettorre during the time period of the will,
2012 and 2013, that he was mentally sharp.
Dr. Cerasoli credibly testified that there was nothing unusual
about Mr. Ettorre’s mental condition the day when the 2013 [w]ill
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was signed. On that day, Mr. Ettore acted in the same manner
that Dr. Cerasoli had observed him over the years.
Dr. Cerasoli also credibly testified that there was no
indication at the time of the execution of the 2013 [w]ill that Mr.
Ettorre was intoxicated or that anyone, including David, coerced,
threatened or forced Mr. Ettorre to sign the 2013 [w]ill. Dr.
Cerasoli had no doubt when he saw Mr. Ettorre on February 8,
2013 that Mr. Ettorre was able to decide what he wanted to do
with his estate and who[m] he wanted to give it to.
Both David and Dr. Cerasoli offered credible testimony
confirming the information that Mr. Ettorre had given Mr. Wyler
regarding David’s care of Mr. Ettorre. David had lived for many
years with Mr. Ettorre at Mr. Ettorre’s residence prior to the
execution of the 2013 [w]ill and assisted Mr. Ettorre with his care.
Dr. Cerasoli, who also lives with an elderly parent, observed
David’s relationship with Mr. Ettorre over the years and believed
that David did a “fabulous job” caring for him.
Dr. Robert Preim, Mr. Ettorre’s primary care physician for
sixteen years prior to his death, credibly testified that during the
time period between May of 2012 and February 8, 2013, he made
a house call to Mr. Ettorre during which he performed a mini
mental status exam of him. Mr. Ettorre’s score was [thirty] out of
[thirty], a perfect score. Dr. Preim also credibly testified that Mr.
Ettorre was always very outgoing, well spoken, smart and had a
good sense of humor. He further credibly stated that he and Mr.
Ettorre had a good relationship and that he never had any
concerns about Mr. Ettorre’s mental capabilities and faculties.
Dr. Preim confirmed that Mr. Ettorre did not have a good
relationship with his daughters and was grateful to David for being
his primary caregiver.
Having viewed the recording of Mr. Ettorre taken on
February 8, 2013, Dr. Preim credibly opined that the recording
depicted Mr. Ettorre free from mental disability and that he
appeared as mentally sharp as he typically did when Dr. Preim
would see him over the years.
Dr. Preim further credibly testified that Mr. Ettorre was a
very strong willed person who would not succumb easily to
someone else’s influences.
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Approximately one week before Mr. Ettorre died, Mr. Wyler
visited with Mr. Ettorre in the hospital outside the presence of
David. Mr. Ettorre was grateful for Mr. Wyler’s visit and described
David as a good son. He requested of Mr. Wyler, that after Mr.
Ettorre’s death, to make sure that David pays the tax on Mr.
Ettorre’s residence so he could continue to live there.
On the day Mr. Ettorre died, May 31, 2015, Mr. Wyler spoke
with Mr. Ettorre on the telephone while Mr. Ettorre was in the
hospital. Mr. Ettorre said he wanted to make sure that David got
Mr. Ettorre’s residence. Mr. Ettorre seemed assured after Mr.
Wyler confirmed that the 2013 [w]ill provided for that disposition.
(Orphans’ Court Opinion, 2/23/17, at 1-5) (paragraph numeration, record
citations, and footnotes omitted). The trial court also stated that:
. . . (o)n October 25, 2016, final orders were issued, including an
order denying [Appellant’s Petition].[3] On November 22, 2016,
Ms. Keno filed an appeal[, which she subsequently discontinued,]
to [this Court]. [On November 17, 2016, Appellant filed a motion
for reconsideration, which the trial court did not act on prior to the
filing of Appellant’s notice of appeal.] On December 5, 2016, Ms.
Ettorre filed an appeal from the court’s October 2016 order
denying her [petition].[4] On December 6, 2016, the [orphans’]
court issued an order requiring [Appellant] to file a concise
statement of errors complained of appeal. [See Pa.R.A.P.
1925(b).] On December 28, 2016, [Appellant] filed a five page
statement of errors complained of on appeal[. See id. On
February 3, 2017, the orphans’ court issued an opinion] pursuant
to the mandate of Pa.R.A.P. 1925(a) to explain the reasons for its
rulings. [See Pa.R.A.P. 1925(a).]
(Id. at 1-2).
On appeal, Appellant raises the following questions for our review.
____________________________________________
3 Appellant did not file exceptions to the order.
4We note that despite being represented by counsel, Appellant filed her notice
of appeal pro se. Counsel subsequently withdrew his appearance.
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1. May an attorney who provided crucial trial testimony as to the
mental capacity of the testator to make a will and undue influence
and asked leading questions as to these issues on a video, act as
trial counsel for the estate in a claim claiming lack of capacity and
undue influence, where the video of the testator does not show
the witnesses were present at the time he signed the will, or is
the practice of a lawyer testifying on crucial issues in court on
behalf of his client while he and his firm represent the client at
trial “condemned,” In re Otto's Estate, 349 Pa. 205, 36 A.2nd
[sic] 797, 799-800 (1944)?
2. If he testifies, must he and his firm withdraw from the case, as
this court ruled in Com. v. Gibson, 448 Pa. Super. 63, 670 A.2nd
[sic] 680 (1996)?
3. Must his testimony be disregarded or must he be banned from
testifying where the issues of his testimony go to the heart of the
case, as this court ruled in Com. v. Floyd, 494 Pa. 537, 431 A.2nd
[sic] 984 (1981), consistent with the national trend and rulings of
the Supreme Courts of Delaware, Matter of Estate of Waters,
647 A.2nd 1091 (1994), Nebraska, Kausgaard v. Endres, 126
Neb. 129, 252 N.W. 810 (1934), Florida, Hubbard v. Hubbard,
233 So. 2d 150 (Fla. 1970), Arkansas, Rushton v. First National
Bank of Magnolia, 244 Ark. 503, 426 S.W.2d 378 (1968), Idaho,
Branon v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 502,
365 P.2d 958 (1961), Kansas, Robbins v. Hannen, 194 Kan.
596, 400 P.2d 733 (1965), Texas, Cheatham v. Franke, 298
S.W.2d 202 (Tex. 1957), Minnesota, Schwartz v. Wenger, 267
Minn. 40, 124 N.W.2d 489 (1963), Kentucky, Garnett v. Walton,
242 S.W.2d 107, 111 (Ky. 1951), Oregon, Oxley v. Linnton
Plywood Ass’n., 205 Or. 78, 284 P.2d 766 (1955), Wisconsin,
In re Weinert’s Estate, 18 Wisc. 2d 33, 117 N.W.2d 685 (1962),
Colorado, Aquilini v. Chamblin, 94 Colo. 367, 30 P.2d 325
(1934) and in Indiana, Bohannan v. Bohannan, 132 Ind. App.
504, 167 N.E.2d 717, 721 (1960)?
4. Where an attorney is disqualified, is his entire law firm
disqualified, it being regarded as one lawyer, U.S. v. Stansfield,
874 F. Supp. 640 (M.D. 1998), and it is improper for the partner
of Appellee’s counsel to remain in the case, as the court ruled in
U.S. v. Clancey, 276 F.2nd 617 (7th Cir. 1960), rev’d on other
grounds, 365 U.S. 312 (1961)?
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5. May a will be proven by one witness, counsel for the estate
testifying at trial, who never testified at trial he saw the testator
sign a will, and another who only stated he was in the same room
but who never stated at trial he actually saw the testator sign the
will, although affidavits state they saw him sign, where neither
subscribing witness testified at trial they saw testator sign the will,
a requirement for it to be sufficiently proven under Wilson Will,
364 Pa. 488 (1950), as the witnesses must have seen and testify
at trial they saw the testator sign the will to prove a will, 20 Pa.
C.S.A. §3132.1(a) & (b), as, in all cases on point, both witnesses
testified they saw the testator sign the will, In re Estate of
Wilner, 142 A.3rd 796, 801 (Pa. 2016), a will is proved by direct
testimony either of two witnesses who saw the testator sign it or
by [two] witnesses who are familiar with his signature and identify
it, Harrison’s Estate, 316 Pa. 15, 17, 173 A. 407 (1934), no case
has held that admitting affidavits is enough, and if there are not
two subscribing witnesses the signature of the testator must be
proven by other evidence, Ligo v. Dodson, 301 Pa. 124, 151 A.
694 (1930), not shown here?
6. Did Appellee, if the testator had testamentary capacity but
weak physically—wheelchair bound—and mentally as to be
susceptible to undue influence, and a substantial part of his estate
was left to one occupying a confidential relationship to him, who
previously drafted another will leaving everything to himself,
superseded by one signed by Decedent giving everything to his,
three children, meet his burden to show no undue influence
controlled the making of the will, and the court err in not using
this standard, Wilson Will, 364 Pa. 488 (1950)?
(Appellant’s Brief, at 6-9) (emphases omitted).
Appellant appeals from the decree of the orphans’ court. Our scope and
standard of review are settled.
Our standard of review of the findings of an Orphans’ Court
is deferential.
When reviewing a decree entered by the
Orphans’ Court, this Court must determine whether
the record is free from legal error and the court’s
factual findings are supported by the evidence.
Because the Orphans’ Court sits as the fact-finder, it
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determines the credibility of the witnesses and, on
review, we will not reverse its credibility
determinations absent an abuse of that discretion.
However, we are not constrained to give the same deference
to any resulting legal conclusions.
The Orphans’ Court decision will not be reversed unless
there has been an abuse of discretion or a fundamental error in
applying the correct principles of law.
This Court’s standard of review of questions of law is de
novo, and the scope of review is plenary, as we may review the
entire record in making our determination. When we review
questions of law, our standard of review is limited to determining
whether the trial court committed an error of law.
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145
A.3d 166 (Pa. 2016) (citations and quotation marks omitted).
Prior to reaching the merits of Appellant’s claims, we must determine if
they are properly before us. As amended in 2007, Pennsylvania Rule of
Appellate Procedure 1925 provides that issues that are not included in the
Rule 1925(b) statement or raised in accordance with Rule 1925(b)(4) are
waived. See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord,
719 A.2d 306, 308 (Pa. 1998), superseded by rule on other grounds as stated
in Commonwealth v. Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Here,
Appellant did not include any of the issues raised in this appeal in her Rule
1925(b) statement. (See Concise Statement of Errors Complained of on
Appeal, 12/28/16, at unnumbered pages 1-5). Therefore, Appellant waived
all her issues on appeal. See Lord, supra at 308; Pa.R.A.P. 1925(b)(4)(vii).
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Moreover, even if Appellant had raised the issues in her Rule 1925(b)
statement, we would not have addressed their merits. Appellant’s four-page
twenty-six issue Rule 1925(b) statement is not in compliance with
Pennsylvania Rule of Appellate Procedure 1925(b)(4). See Kanter v.
Epstein, 866 A.2d 394, 401 (Pa. Super. 2004), appeal denied, 880 A.2d 1239
(Pa. 2005), cert. denied, 546 U.S. 1092 (2006) (waiving prolix Rule 1925(b)
statement where court determined that “outrageous number of issues” was
deliberate attempt to circumvent purpose of Rule 1925). Thus, even if
Appellant had properly preserved her issues, the appeal would be subject to
dismissal for this reason as well.
In any event, Appellant’s claims are without merit. Appellant’s first four
issues all concern her contention that the trial court should have disqualified
opposing counsel and his firm. (See Appellant’s Brief, at 6-7). We will
therefore address these issues together.5
With respect to the disqualification issue, Appellant argues: “testifying
for a client yet remaining as counsel violates law.” (Appellant’s Brief, at 11).
She further contends that, as in the instant matter, permitting another
____________________________________________
5 Appellant’s argument does not match her statement of the questions
involved, as she intermingles her first five issues and does not appear to
address her sixth issue, contrary to our rules of appellate procedure. (See
Appellant’s Brief, at 11-28); see also Pa.R.A.P. 2119(a) (“The argument shall
be divided into as many parts as there are questions to be argued[.]”).
Nonetheless, to the extent we can determine her argument, we will address
her issues. See Donahue v. Fed. Express Corp., 753 A.2d 238, 241 n.3
(Pa. Super. 2000).
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attorney from counsel’s firm to represent Appellee at trial was improper
because the “law firm and attorney are one.” (Id. at 18). She also argues
that the trial court erred in crediting counsel’s testimony. (See id. at 19).
We disagree.
When reviewing a trial court's order on a motion for disqualification of
counsel, we employ a plenary standard of review. See Weber v. Lancaster
Newspapers, Inc., 878 A.2d 63, 80 (Pa. Super. 2005), appeal denied, 903
A.2d 539 (Pa. 2006). Further, “courts should not lightly interfere with the
right to counsel of one's choice.” Id. Thus, disqualification is appropriate
“only when both another remedy for the violation is not available and it is
essential to ensure that the party seeking disqualification receives the fair trial
that due process requires.” Id. (internal citation omitted). In addition, the
court should prevent litigants from using motions to disqualify opposing
counsel for tactical purposes. Hamilton v. Merrill Lynch, 645 F. Supp. 60,
61 (E.D.Pa. 1986).6
After review of the record, we agree with the trial court, (see Order,
10/05/16, at footnote 1), that the Rules of Professional Conduct permitted the
substitution of alternate counsel from Attorney Wyler’s firm when Attorney
Wyler was likely to be called as a witness at trial.
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6“While we recognize that federal court decisions are not binding on this court,
we are able to adopt their analysis as it appeals to our reason.” Kleban v.
Nat. Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa. Super. 2001).
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Pennsylvania has adopted the advocate-witness rule provided by
Pennsylvania Rule of Professional Conduct 3.7, which provides as follows:
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of
legal services rendered in the case; or
(3) disqualification of the lawyer would work
substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer
in the lawyer's firm is likely to be called as a witness unless
precluded from doing so by Rule 1.7 or Rule 1.9.
Pa. Rs. of Prof. Cond. Rule 3.7. Rule of Professional Conduct 1.7 provides:
(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly
adverse to another client; or
(2) there is a significant risk that the representation
of one or more clients will be materially limited by the
lawyer's responsibilities to another client, a former
client or a third person or by a personal interest of the
lawyer.
(b) Notwithstanding the existence of a concurrent conflict of
interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion
of a claim by one client against another client
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represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) each affected client gives informed consent.
Pa. Rs. of Prof. Cond. Rule 1.7. Rule of Professional Conduct 1.9 states:
(a) A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same or a
substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the
former client gives informed consent.
(b) A lawyer shall not knowingly represent a person in the same
or a substantially related matter in which a firm with which the
lawyer formerly was associated had previously represented a
client
(1) whose interests are materially adverse to that
person; and
(2) about whom the lawyer had acquired information
protected by Rules 1.6 and 1.9(c) that is material to
the matter; unless the former client gives informed
consent.
(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in
a matter shall not thereafter:
(1) use information relating to the representation to
the disadvantage of the former client except as these
Rules would permit or require with respect to a client,
or when the information has become generally known;
or
(2) reveal information relating to the representation
except as these Rules would permit or require with
respect to a client.
Pa. Rs. of Prof. Cond. Rule 1.9.
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Here, Appellant all but ignores the existence of Rule 3.7. While she
quotes it on the final page of her argument in this issue, she fails to discuss
its application to this matter, let alone argue that the substitution of a different
attorney from Attorney Wyler’s firm violated either Rule 1.7 or Rule 1.9. (See
Appellant’s Brief, at 20-21). Instead Appellant relies on Pennsylvania case-
law which predates the enactment of Rule 3.7, and, thus, is no longer
controlling and/or cases from other jurisdictions interpreting their own states’
rules and laws, which are irrelevant. (See generally Appellant’s Brief, at 11-
19).
The record reflects that Attorney Wyler was aware that he would be
called as a witness and arranged for another lawyer for his firm to represent
Appellee at trial. (See Order, 10/05/16, at footnote 1). This was the proper
procedure as outlined under Rule 3.7(b). Appellant fails to explain why this
was improper or in violation of the Rules of Professional Conduct. Accordingly,
the trial court did not err in denying Appellant’s motion for disqualification.
See Pa. Rs. of Prof. Cond. Rule 3.7(b).
Appellant also argues that the trial court erred in crediting Attorney
Wyler’s testimony because he was not a competent witness. (See Appellant’s
Brief, at 19).7 We have reviewed Appellant’s undeveloped argument on this
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7 We note that it was Appellant, not Appellee, who called Attorney Wyler to
testify in her case-in-chief. (See N.T. Trial, 10/24/16, at 15, 17, 46).
Appellant did not make any objections to his testimony. It is settled that
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issue. Appellant does not point to any relevant caselaw to support her
argument. To the contrary, this Court has held that evidence given by an
attorney can be critical to a case. In Commonwealth v. Gibson, 670 A.2d
680 (Pa. Super. 1996), the appellant claimed that the trial court had erred in
not allowing trial counsel to testify on his behalf regarding a prior inconsistent
statement given by the sole witness against him. See Gibson, supra at 681-
82. On appeal, our Court stated that, while frowned upon, an attorney could
act both as an advocate and a witness. See id. at 683. We further noted that
the trial court could have permitted trial counsel to withdraw at that point and
have co-counsel to represent the appellant. See id. We also pointed out that
the risks of having an attorney’s “testimony being given undue weight by the
factfinder was also minimized because this was a bench trial.” Id. Lastly, we
held that the failure to admit counsel’s testimony was not harmless error
because it was “valuable impeachment” testimony in a weak case. Id. at 684.
Thus, under Gibson, it is evident that an attorney is competent to give
evidence in a case and a trial court can rely on that testimony. Appellant’s
claim lacks merit. See Gibson, supra at 683-84.
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failure to make a contemporaneous objection waives the issue on appeal. See
Parr v. Ford Motor Co., 109 A.3d 692, 709 (Pa. Super. 2014), appeal denied,
123 A.3d 331 (Pa. 2015), cert. denied, 136 S. Ct. 557 (2015) (citing cases).
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Appellant next claims that the trial court erred in finding that the will
was valid because neither witness testified that he saw the decedent sign the
will. (See Appellant’s Brief, at 21-28). However, Appellant waived this claim.
In her petition for citation sur appeal from probate, Appellant raised
three issues, stating that she was contesting the will “on the basis of [f]raud,
[u]ndue [i]nfluence and [l]ack of [t]estamentary [c]apacity.” (Petition for
Citation Sur Appeal from Probate, 8/12/15, at 2; see N.T. Trial, 10/24/16, at
30). Appellant did not challenge the will on the basis that the signing was not
properly witnessed. At trial, Appellant withdrew the fraud claim and went
forward only on lack of testamentary capacity and undue influence. (See N.T.
Trial, 10/24/16, at 31). We have consistently held that issues raised for the
first time on appeal are waived. See Erie Ins. Exchange v. Bristol, 174
A.3d 578, 590 (Pa. 2017), appeal granted, 134 A.3d 51 (Pa. 2016); see also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
Accordingly, we find that Appellant waived this issue for this reason as well.8
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8 In any event, the record does not support Appellant’s contention. At trial,
Mr. Robert Pinkos, First Deputy of the Chester County Register of Wills
presented copies of Dr. Ceraoli’s and Mr. Wyler’s affidavits of non-appearing
witnesses, which stated that each was present when the decedent signed the
will. (N.T. Trial, 10/24/16, at 36-38). Mr. Pinkos testified that the will had
been filed with the register of wills and admitted to probate. (See id.).
Appellant did not object to Mr. Pinkos’ testimony or to the admission into
evidence of the affidavits. (See id. at 44, 54). Counsel admitted that Appellee
had established that the will was probated. (See id.). Moreover, at trial, Dr.
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In her final claim, Appellant contends that the trial court erred in finding
that she had not met her burden of proving undue influence. (See Appellant’s
Brief, at 8-9). However, Appellant does not discuss this claim within her
argument. (See id. at 11-28). Therefore, we find the claim waived. See
Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002) (claims raised
in the Statement of Questions Involved but not pursued in the body of the
brief are waived).
Accordingly, for the reasons discussed above, we find Appellant’s claims
are both waived and lacking in merit. Therefore we affirm.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/18
____________________________________________
Cerasoli and Attorney Wyler both testified, without contradiction, that they
had witnessed the decedent sign the will. (See id. at 123-25, 140-41). Thus,
even if Appellant had not waived her claim, it has no basis in fact.
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