Estate of Lehman, W. ( 2022 )

J-A05016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF WENDELL L. : IN THE SUPERIOR COURT OF
LEHMAN : PENNSYLVANIA
:
:
APPEAL OF: NICHOLAS L. BOYER, :
DEANNA M. BOYER, ANNETTE M. :
BOYER, QUINN T. STARNER, AND :
ROSS E. STARNER : No. 601 MDA 2021
Appeal from the Order Entered April 16, 2021,
in the Court of Common Pleas of Adams County,
Orphans’ Court at No(s): OC-73-2017.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J. FILED APRIL 01, 2022
Some of the Descendants of the late Wendell L. Lehman, (namely,
decedent’s daughter, Annette M. Boyer, and her children and grandchildren)
objected to the administration of Wendell’s Estate in the Orphans’ Court of
Adams County. Following a non-jury trial, Descendants appeal from an order
ruling that (1) Annette’s brother, Sheldon Lehman, did not unduly influence
Wendell regarding Wendell’s designation of beneficiaries on four transfer-on-
death accounts and that (2) Sheldon did not violate a fiduciary duty to
Wendell.1
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* Former Justice specially assigned to the Superior Court.
1 The orphans’ court also held that Wendy S. Starner and Christopher L. Boyer
lack standing. Descendants do not appeal that determination. That decision
is now final; thus, we have removed Wendy and Christopher’s names from the
caption.
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Descendants only challenge the third ruling. They allege Sheldon was
acting under a power of attorney when Wendell signed the beneficiary-
designation forms, and, therefore, Sheldon owed Wendell a fiduciary duty.
Because Wendell signed the beneficiary-designation forms on his own volition,
we affirm.
Wendell was originally married to Jeanne, and they had four children –
Annette, Wanda, Lindy, and Sheldon. Wendell was a successful businessman
and savvy investor. He kept a close eye on his investments and thoroughly
questioned those who managed his finances. Wendell was never easily bullied
or manipulated. He possessed a strong will and adhered to traditional gender
roles. Also, he often threatened his children with disinheritance to manipulate
them into doing what he desired.
This strained Annette’s relationship with her father, because she would
often challenge his conduct and familial control. After a 1988 dispute, Annette
ceased all communication with her parents, three siblings, and daughter for
eight years. This and other disagreements between Wendell and Annette
caused Wendell to remove her from and return her to his will on several
occasions.
Around 2003 or 2004 Wendell opened a Genworth Annuity account as
an irrevocable retirement account (“IRA”), and he named all four children as
his beneficiaries. He later changed the beneficiary of this transfer-on-death
account to his Estate.
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Then, on September 17, 2009, Wendell’s first wife died, and he married
Beatrice in December of 2010. The next winter, Wendell appointed Sheldon
as his power of attorney. A month later, he opened a second transfer-on-
death account with Wanda, Lindy, and Sheldon designated as beneficiaries.
Approximately two years passed, and, on November 10, 2014, Wendell
met with Harry “Bud” Rubin, Esq. to modify his will. Attorney Rubin’s partner,
Alex Snyder, Esq.; Wanda’s husband; Lindy’s husband; and Sheldon were also
at that meeting. The orphans’ court found that:
[Wendell] was very clear during the November 10, 2014
meeting about what he wanted to do . . . [He] and Attorney
Rubin did the majority of the talking . . .
It was not Attorney Snyder’s impression that the . . .
meeting was being steered by anyone other than [Wendell].
Attorney Snyder [was] always concerned about the
testamentary capacity of his elderly clients when he [was]
involved in creating testamentary documents[; hence,] it
[was] his standard practice to assess testamentary capacity
and whether the testator is being influenced by others. [He]
had no concerns about Wendell’s testamentary capacity
during the November 10, 2014 meeting.
[The orphans’ court deemed that] the testimony of
Attorney Snyder [was] credible. Every single person who
testified at trial, that was present during the November 10,
2014 meeting . . . testified that it was [Wendell] who
instructed Attorney Rubin as to how to draft his will.
Attorney Rubin drafted the 2014 will and emailed it to
Sheldon on November 14, 2014, copied Attorney Snyder,
and stated, “Sheldon, I think this does what Wendell wants
it to do in the easiest and simplest way.” N.T., 9/10/20, at
405. The 2014 will was signed by [Wendell] on December
4, 2014.
When [Wendell] discovered that the 2014 will could
have potentially resulted in [him] bequeathing more than
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$200,000 to Beatrice, he made another appointment with
[Attorney] Rubin to change the will. The provisions
excluding Annette and including Annette’s Grandchildren in
the 2015 will were the same as in the 2014 will.
Orphans’ Court Opinion, 4/16/21, at 20-22.
Eight days later, on November 18, 2014, Wendell opened his third and
fourth transfer-on-death accounts. For both, he named Wanda, Lindy, and
Sheldon as beneficiaries. On that same day, he changed the beneficiaries on
his Genworth Annuity IRA from his Estate to Wanda, Lindy, and Sheldon.
Wendell “signed the beneficiary-designation forms and made the
beneficiaries of these . . . accounts Wanda, Lindy and Sheldon . . . .” Id. at
23-24. Indeed, “[t]here was no evidence or testimony presented that any of
[Wendell’s] signatures or initials on the beneficiary-designation forms were
forged or executed without [his] knowledge or authorization.” Id. at 24. In
other words, Wendell knowingly and voluntarily executed the beneficiary-
designation forms for the transfer-on-death accounts. Hence, as a factual
matter, “Sheldon was not acting as the agent for [Wendell] when Sheldon
prepared the beneficiary-designation forms and [Wendell] signed” them. Id.
Wendell died on August 2, 2016. A year later, Descendants “filed a
Petition for Citation to Show Cause Why an Inventory and Accounting Should
Not be Filed by [Sheldon] While Acting as an Agent for [Wendell], While Acting
as Executor of the Estate of Wendell L. Lehman and Why [Sheldon] Should
Not be Removed as Executor.” Id. at 26. Descendants alleged that Sheldon,
as Wendell’s power of attorney, unilaterally changed beneficiary designations
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on Wendell’s four transfer-on-death accounts to benefit himself and others
and to exclude Annette and her heirs.
On November 21, 2017, the orphans’ court directed Sheldon to file an
Inventory and Accounting for the period that he acted as Wendell’s agent and
an Inventory and Accounting of his activities as Executor of the Estate.
Sheldon filed a First and Final Accounting as Wendell’s agent pursuant to the
POA (the “POA Accounting”) and filed a First and Partial Accounting for the
Estate.
Descendants filed Objections to the POA Accounting and Objections to
the First and Partial Accounting for the Estate. The parties agreed to bifurcate
the issues concerning the transfer-on-death accounts. The orphans’ court
held a non-jury trial regarding those accounts in September of 2020, and the
court issued its decision on April 16, 2021. This timely appeal followed.2
Descendants raise seven claims of error. They are as follows:
1. Whether the [orphans’ court] erred and abused its
discretion in finding that [Sheldon] did not violate his
fiduciary duty of loyalty and good faith to [Wendell]
by failing to exercise reasonable caution or prudence
in the exercise of his duties.
2. Whether the [orphans’ court] erred and abused its
discretion in failing to find that once [Sheldon] was
named as agent for [Wendell], pursuant to a certain
power of attorney dated December 30, 2010, the duty
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2 Although the April 16th Order is not a final order disposing of all claims and
all parties, our appellate jurisdiction is vested. Under Pennsylvania Rule of
Appellate Procedure 432(a), we have jurisdiction over the order, because it
determines that Descendants have no interest in personal property – i.e., the
four transfer-on-death accounts.
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of good faith and honesty in fact applies to all actions
by [Sheldon] (including material omissions) during
the period while the power of attorney is in effect.
3. Whether the [orphans’ court] erred and abused its
discretion in finding that [Sheldon] was not acting as
an agent for [Wendell] when [Sheldon] appeared with
[Wendell] at the November 10, 2014 meeting at
Barley Snyder nor was [Sheldon] acting as agent for
[Wendell] when [Sheldon] prepared the beneficiary-
designation forms signed on January 26, 2012 and
November 18, 2014.
4. Whether the [orphans’ court] erred and abused its
discretion in failing to apply 20 Pa.C.S.A. §§ 5601 —
5613 (the POA Statute), and [in failing to] find that all
actions by [Sheldon were] subject to the language of
“good faith” defined as “honesty in fact,” including
those where he completed the beneficiary-designation
forms signed on January 26, 2012 and November 18,
2014, where [Sheldon] was both the agent, a
beneficiary of a retirement plan, and the financial
advisor of [Wendell].
5. Whether the [orphans’ court] erred and abused its
discretion when it disregarded the testimony of
Christopher M. Harvey, Esquire, an expert in the field
of trusts and estates, who testified once an agent
under a power of attorney puts on the hat as an agent
that fiduciary obligation to act in good faith continues.
6. Whether the [orphans’ court] erred and abused its
discretion in precluding [Descendants] from admitting
or using any evidence of [Sheldon’s] history of loans
between himself and Virginia McCleaf, with whom he
was in a fiduciary relationship with, under a power of
attorney dated March 13, 2014, and for which he was
found to have “engaged in dishonest or unethical
practices in the securities business,” for which the
Department of Banking and Securities fined him
[$100,000].
7. Whether the [orphans’ court] erred and abused its
discretion in precluding [Descendants] from admitting
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or using any evidence of [Sheldon’s] history of loans
between himself and [Wendell].
Descendants’ Brief at 3-5 (excess capitalization omitted). Descendants
combine their first through fifth issues and their sixth and seventh issues in
the argument portion of their brief. Thus, we dispose of the issues in the
same manner below.
1. Issues One through Five.
For their first five issues, Descendants contend that the orphans’ court
misapplied the law regarding powers of attorney and the fiduciary duties that
a power of attorney must fulfill. While this section of their argument is long
and drawn out,3 it rests upon Descendants’ belief that Sheldon owed Wendell
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3 We note that Descendants’ brief violates the Pennsylvania Rules of Appellate
Procedure. Those Rules provide, “The argument shall be divided into as
many parts as there are questions to be argued; and shall have at the
head of each part—in distinctive type or in type distinctively displayed—the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a) (emphasis added).
This is not a picayune matter of style. Rule 2119(a) guides writers to craft
concise, cogent arguments for each issue raised. This aids appellate review
by compartmentalizing the claims of error and the legal theories supporting
them. This, in turn, heightens our comprehension of the arguments and
increases a brief’s persuasive power.
Disregarding that Rule, Descendants jumbled their first five issues into
a 72-page stream of ideas. See Descendant Brief at 20-92. They then
crammed their final two claims of error in the last page-and-a-half of their
brief. See id. at 93-94. Moreover, none of their nine sub-headings for the
first section directly matches the five issues that Descendants raised. This
throw-everything-at-the-wall approach to appellate advocacy, at best, lessens
the odds of convincing the court that reversible error occurred. At worst, it
may lead to the quashing of the appeal. “Although it is within this Court’s
power to quash an appeal for clear violations of the Rules of Appellate
(Footnote Continued Next Page)
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a fiduciary duty when Wendell decided and designated his beneficiaries for the
four transfer-on-death accounts.
The orphans’ court disagreed. It found as a matter of fact that Sheldon
did not sign the beneficiary-designation forms. Thus, that court concluded
that Sheldon was not acting under his power of attorney. It opined as follows:
The evidence and testimony at trial clearly establishes
that Sheldon was not acting as the agent for [Wendell] when
Sheldon appeared with [Wendell] at the November 10, 2014
meeting, nor was Sheldon acting as agent for [Wendell]
when Sheldon prepared the beneficiary-designation forms
at the direction of [Wendell,] which [Wendell] signed on
January 26, 2012 and November 18, 2014. See In Re:
Estate of Anna S. Wierzbicki, 174 A.3d 1061 (Pa. Super.
2017) wherein Superior Court ruled:
[F]irst, it is undisputed that the decedent herself
executed the document. The [appellants] do not
dispute that the signature on page 3 of the document
is that of the decedent. The fact that the executrix
assisted the decedent by handwriting the names and
other information of the decedent’s chosen
beneficiaries is of no moment.
Id. at 1065. Furthermore, [Wendell] had testamentary
capacity on November 10, 2014 and was not suffering from
weakened intellect during this time period.
The best evidence concerning [Wendell’s] “known
intent” on November 18, 2014 is [Wendell’s] actions on
January 26, 2012 when [Wendell] opened TCA Account 328
and named Wanda, Lindy and Sheldon as the beneficiaries,
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Procedure, because appellants’ brief is not so defective as to preclude effective
appellate review, we will not quash their appeal.” Universal Underwriters
Ins. Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 689 n.6 (Pa. Super. 2007)
(citation omitted).
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and specifically excluded Annette and her bloodline
concerning this [transfer-on-death] Account.
Orphans’ Court Opinion, 4/16/2021, at 41-43.
The factual findings that Wendell signed the beneficiary-designation
forms and that Sheldon only assisted Wendell at Wendell’s direction finds
support in the record, because Sheldon testified to those facts. We afford the
orphans’ court’s factual findings “the same weight as we would a jury verdict.”
In re Estate of Piet, 949 A.2d 886, 890 (2008), vacated on other grounds,
997 A.2d 338 (Pa. 2010).
As the “finder of fact, the judge is free to believe all, part, or none of
the evidence, and this Court will not disturb his credibility determinations.”
In re Rosenbloom, 621 WDA 2019, 2020 WL 753332, at *2 (Pa. Super.
2020) (unpublished decision) (quoting Williams v. Taylor, 188 A.3d 447,
450 (Pa. Super. 2018) (some punctuation omitted). “A judge of
the orphans’ court, who heard and saw the witnesses testify and who had the
sole power to determine their credibility, is in a far better position than
this Court to decide the truth.” Id. Here, the orphans’ court heard and saw
Sheldon testify as to his interactions with Wendell during the execution of the
beneficiary-designation forms, and that court found Sheldon’s version of the
events to be credible. That credibility finding binds this Court.
Thus, we agree with the orphans’ court. Sheldon was not acting under
his power of attorney when Wendell signed the forms, because Sheldon did
not sign the forms. See Wierzbicki, supra.
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Descendants first five issues are meritless.
2. Issues Six and Seven.
Next, Descendants claim the orphans’ court committed two evidentiary
errors. See Descendants’ Brief at 92-94. They cite no Rule of Evidence or
any case law to support either assertion of error. This is a clear violation of
Pa.R.A.P. 2119(a), and it “waives the issue[s] for purposes of review.” In re
Estate of Whitley, 50 A.3d 203, 210 (Pa. Super. 2012).
We dismiss Descendants’ evidentiary claims as waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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