J-A09006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MAX H. MCCOMB, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

APPEAL OF: DANIEL R. ALEXANDER

No. 1087 WDA 2019

Appeal from the Order Entered June 18, 2019

In the Court of Common Pleas of Venango County

Orphans' Court at No(s): O.C.D. 2013-218

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 18, 2021

Appellant, Daniel R. Alexander, appeals from the June 18, 2019 order 

directing the Venango County Register of Wills to revoke her order admitting 

to probate the 2013 Will (the “2013 Will) of Max H. McComb (the “Decedent”). 

Also before us is Appellant’s application either to substitute Marcia Alexander, 

his surviving wife (“Marcia”), as Appellant or to proceed without substitution. 

We affirm the Orphans’ Court’s order and grant the application to proceed 

without substitution.

Appellant, formerly known as Lance McComb, is the only surviving 

biological child of Decedent. Appellant was the sole heir under the 2013 Will, 

executed on January 15, 2013 and probated on September 19, 2013. On 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A09006-21

- 2 -

December 10, 2013, Malcolm Potter (“Malcolm”) and Pamela O’Neal

(“Pamela,” or collectively with Malcolm, “Petitioners”), Decedent’s 

stepchildren by his second wife, Hazel Potter (“Hazel”), petitioned the 

Orphans’ Court to set aside the 2013 Will as a product of Appellant’s undue 

influence. Malcolm and Pamela each stood to inherit one-third of Decedent’s 

estate, with the other third going to Appellant, under a will Decedent executed 

in 2011 (the “2011 Will”). The 2011 Will replaced an earlier one, executed in 

2009 (the “2009 Will”), under which Appellant was the sole heir. 

The Orphans’ Court heard testimony on May 25, 2014, September 19 

through September 22, 2017, and December 4, 6, and 7, 2017. The parties 

then introduced their proposed findings of fact and conclusions of law. The 

Orphans’ Court adopted Petitioners’ 288-paragraph proposed findings of fact 

and 37 conclusions of law verbatim and entered the order before us. This 

timely appeal followed. 

In 2009, at the time of execution of the 2009 Will, Decedent was 84 

years old, and Hazel was 88 years old. Hazel suffered from severe dementia, 

and the couple employed full-time, live-in aides to assist in her care at the 

couple’s home in Valhalla, New York (the “Valhalla Home”). Decedent and 

Hazel lived at the Valhalla home during most of their 38-year marriage (they 

were married in 1973), and Hazel and her first husband raised Petitioners

there. Hazel had been widowed for approximately 12 years prior to her 

marriage to Decedent. Decedent also owned a house and 131-acre farm in 
J-A09006-21

- 3 -

Rouseville, Venango County, Pennsylvania (known as and referred to 

hereinafter as the “Hood Farm”), where Decedent and his first wife raised 

Appellant and another son who predeceased Appellant. 

Decedent became sick and was hospitalized in August of 2011. Unable 

to reach Appellant in California, Decedent appointed Pamela as his healthcare 

proxy in place of Appellant. N.T., 9/19/17, at 28-29. Decedent suffered an 

ischemic stroke, meaning the blood flow to his brain was inhibited but there 

was no bleeding. Deposition of Andrew Lowe, M.D., 9/24/15, at 11.

1

 

Decedent’s speech returned to normal thereafter, but he suffered some 

cognitive deficits. Id. Dr. Lowe, an internist, had been Decedent’s treating 

doctor for many years, and Decedent’s personality seemed intact to Dr. Lowe 

afterwards. Id. at 13. 

In September 2011, upon his return home from the hospital, Decedent 

noticed unexplained transfers of money out of his Wells Fargo bank account. 

N.T., 9/19/17, at 27, 30-31. The money went to Appellant, who had recently 

asked Decedent for his account information in connection with a loan 

application. Id. at 34; Deposition of Giovanni Grande, 9/21/15, at 42, 56, 

____________________________________________

1

 The parties introduced numerous depositions into evidence throughout the 

proceedings in this matter. No evidentiary objections lodged during the 

depositions or the various hearings in this matter have been argued on appeal. 
J-A09006-21

- 4 -

62, 64.

2 The money was transferred to Appellant through an online transfer; 

Decedent did his banking in person and never used online banking. Id. at 11. 

Wells Fargo returned the funds to Decedent’s account less what Appellant had 

spent. Id. at 11, 16. Initially, Decedent was furious about the transfers. 

Deposition of Anne Penachio, 9/21/15, at 20.3 Decedent filed an affidavit of 

fraud with Wells Fargo, but eventually decided he did not wish to press charges

against Appellant. N.T., 9/19/17, at 70. Grande Deposition, 9/21/15, at 12. 

In any event, Decedent’s initial anger at Appellant prompted him to

execute the 2011 Will. In it, after providing for the care of Hazel if she 

survived him, Decedent left the Valhalla Home to Petitioners, the Hood Farm

to Appellant, and the residue to Appellant, Malcolm, and Pamela in three equal 

shares. Deposition of Robin Freimann, 9/21/15, at 9-10, 18, and Exhibit 7. 

In early 2012, a group of Decedent’s former neighbors negotiated an oil 

and gas lease for shale gas underneath the Hood Farm and neighboring 

properties. N.T., 9/19/17, at 97-98, 108, 115. The resulting payout to 

Decedent was $433,000.00. Id. at 114. The oil and gas company

representative, Bryant McCrary, as well as Larry Waitz, the person who 

negotiated on behalf of the landowner group, both testified that Appellant 

____________________________________________

2

 Grande is a private banker at Wells Fargo in Thornwood, New York, who 

helped Decedent when he visited the Thornwood branch. Id. at 4-5. 

3 As discussed herein, Anne Penachio was a New York court-appointed 

evaluator.
J-A09006-21

- 5 -

played no role in negotiating the lease. Id. at 110; Deposition of Bryant 

McCrary, 5/13/16, at 9-11, 14, 30. Appellant claimed he was heavily involved

and procured much more money for Decedent than Decedent would have 

received without Appellant’s efforts. N.T., 9/19/17, at 114-15; Deposition of 

Anne Penachio, 9/21/15, at 23-24. In June 2012, shortly after Decedent 

received his check, Appellant traveled from his home in California to 

Decedent’s Valhalla home “to celebrate his father’s good fortune.” Appellant’s 

Brief at 6. This was Appellant’s first time visiting Decedent in many years. 

Id. at 39, 46; N.T., 9/22/17, at 41. 

According to Malcolm, Decedent was upset by Appellant’s visit and told 

Malcolm he was sleeping with his keys, wallet, and checkbook under his pillow. 

N.T., 9/22/17, at 43. Likewise, Howard Gierling, Decedent’s financial advisor 

since 1991, testified that Decedent told him he was sleeping with his 

checkbook under his pillow. N.T., 9/19/17, at 121-22, 137. Decedent told 

Malcolm he wanted Appellant to leave. N.T., 9/22/17, at 43. Malcolm claims 

he traveled to the Valhalla home at Decedent’s request and, in the presence 

of Decedent and Appellant, asked Decedent if he wanted Appellant to leave. 

Id. at 44-45. Decedent said he wanted Appellant out by the following 

Wednesday, and Appellant replied, “I’m not leaving here until my business is 

done.” Id. at 45. Malcolm was unable to speak with Decedent outside of 

Appellant’s presence during his visit to the Valhalla Home. Id. at 44. After 

his return home, Malcolm’s phone calls to the Valhalla home either went 
J-A09006-21

- 6 -

unanswered, or Appellant answered and told Malcolm Decedent did not want 

to talk. N.T., 9/22/17, at 54. 

Appellant did not leave the Valhalla home despite Decedent’s request in 

Malcolm’s presence, and Pamela testified that Decedent eventually overcame 

his initial upset at Appellant’s presence. N.T., 9/19/17, at 73. In Grande’s 

observations, Decedent was happy to have Appellant back in his life. Grande

Deposition, 9/21/15, at 37. He described Decedent as a “real nice guy” and 

a “funny guy” who cracked jokes with the employees. Id. at 31-33, 60. He 

thought Petitioners and Decedent’s health care aide were more concerned 

about Appellant’s activity than Decedent was. Id. at 49-50. 

Concerning the aides Decedent employed before Appellant’s arrival, 

Gierling testified that Decedent was pleased with the in-home caregivers, but 

he eventually replaced them with another service at Appellant’s behest. N.T.,

9/22/17, at 137. Dr. Lowe confirmed that Decedent never complained about 

his home care aides; they seemed to be good people. Lowe Deposition, 

9/24/15, at 18, 80. The cost was shockingly high, however, and Dr. Lowe 

agreed with Decedent’s complaints about it. Id. at 51-52. The replacements 

Appellant hired were far less expensive but did not provide transportation for 

Decedent. 

Gierling and Jack Bankson, a close friend of Decedent since elementary 

school, testified that Decedent’s’ behavior changed after Appellant’s arrival at 

the Valhalla Home. N.T., 9/19/17, at 142; Deposition of Jack Bankson 
J-A09006-21

- 7 -

Deposition, 1/22/16 at 7, 69. Gierling noted that during phone calls Decedent 

sounded as if he were reading word for word. N.T., 9/19/17, at 142. Gierling 

believed Appellant was in the room with Decedent during phone calls, directing 

Decedent’s responses. Id. at 155-56. Aides at the Valhalla Home expressed 

concern with Appellant’s presence and reported to Malcolm that they found 

“scripts” near the telephones apparently written to guide Decedent’s 

telephone conversations. N.T., 9/19/17, at 50-52, 142, Petitioners’ Exhibit C. 

According to Bankson, Appellant and Decedent had not seen each other 

for years, despite Decedent putting Appellant through various institutions of 

higher learning until Appellant was thirty-five years old. Id. at 37-38, 43. 

Decedent expressed to Bankson that he mistrusted Appellant’s motives for 

visiting. Bankson Deposition, 1/22/16, at 43-44. He believed Appellant 

wanted Decedent’s estate, and that he was failing to provide proper care after 

the move to Pennsylvania. Id. at 77-78. Appellant mostly refused to admit 

Decedent’s Pennsylvania neighbors for visits; he informed none of the 

Pennsylvania neighbors when Hazel passed away; and there was no obituary 

for Hazel in a local newspaper. Id. at 83, 99, 103-04. Appellant let Bankson 

in the Valhalla Home but was controlling of the conversations and frequently 

interrupted. Id. at 89-90. 

John Pierce, who grew up next door to the Valhalla Home, had lived 

there for nearly thirty consecutive years prior to Decedent’s death, had always 

been friendly with Decedent and Hazel, and noticed that they did not interact 
J-A09006-21

- 8 -

with him or other neighbors after Appellant moved in. Id. at 55; Pierce 

Deposition, 9/21/15, at 4, 11. Pierce stored the personal effects of a home 

care aide who was fired suddenly upon Appellant’s arrival. Id. at 11, 17. He 

had never previously heard Decedent complain about the aide. Id. at 18. 

Pierce heard Decedent speak highly of Petitioners, Pierce knew Decedent was 

hurt that Appellant rarely called or visited and did not attend the wedding of 

Decedent and Hazel. Id. at 12-13. Pierce described Decedent as strong willed 

when he had to be. Id. at 28. Pierce believed Appellant’s only reason for 

moving into the Valhalla Home was to inherit it. Id. at 38-39. 

Evidence suggests that Decedent’s view of Petitioners changed after 

Appellant’s arrival. Officer Peter Blume of the Mount Pleasant, New York, 

Police Department, read from an incident report (he was summoned to the 

Valhalla Home in response to concerns over Hazel’s well-being), which stated, 

“[Decedent] did express concern to this officer as to the intentions of Hazel’s 

children, even referring to them as thieves, although patrol believes those 

may be words that [Appellant] influenced [Decedent] to say and believe over 

the course of his months’ plus visit.” Blume Deposition, 11/3/15, at 17. 

Blume said the home healthcare worker overheard conversations in which 

Appellant spoke ill of Petitioners to Decedent. Id. at 18. The healthcare 

worker heard Appellant refer to Petitioners as “thieves” and “gold diggers,” 

words Decedent later used to describe Petitioners to Blume. Id. at 49-50. 

The healthcare worker Blume spoke to believed Appellant and Petitioners were 
J-A09006-21

- 9 -

more concerned about Decedent’s and Hazel’s assets than their health. Id.

at 40-41. Blume believed the healthcare worker was genuinely concerned for 

Decedent and Hazel but discerning those concerns and expressing them to 

police was beyond the scope of her employment. Id. at 42. Blume noted that 

Decedent did not seem to feel uncomfortable or threatened by Appellant’s 

presence. Id. at 47-48. Blume believed, nevertheless, that Appellant wanted 

to be the dominant factor in how the estate was distributed, and that Decedent 

was receiving “one-sided information” from Appellant. Id. at 44, 47. 

Notes from Decedent’s visit to Dr. Lowe on June 1, 2012 indicate “mild 

to moderate cognitive loss,” meaning “he’s still functioning pretty well.” Lowe 

Deposition, 9/24/15, at 19-20. On July 3, 2012, Decedent presented with 

confusion; one of the home care aides reported that Decedent was stressed 

about some transfers of money. Id. at 21. Notes from various 2012 visits 

indicate that Decedent could converse normally but that his short-term 

memory was impaired. Id. at 22-23. Decedent knew the current date but 

did not know or recognize the name of the President. Id. at 26. Decedent 

understood the things he was saying to Dr. Lowe, and he was clear. Id. at 

35. 

Dr. Lowe noted that Appellant put Decedent on numerous supplements, 

including fish oil, vitamin D, multivitamins, linoleic acid, beta carotene, papaya 

enzyme, cherry amino acid, vitamin C, Chlorenergy pills, folic acid, and niacin. 

Id. at 26. Dr. Lowe recommended cessation of all but the fish oil, vitamin D, 
J-A09006-21

- 10 -

and multivitamin. Id. Also, Appellant was feeding Decedent raw eggs. Dr. 

Lowe “strongly advised the risk of food poisoning from eating a raw egg.” Id.

at 27. These notes come from an August 6, 2012 visit at which Decedent 

presented with, among other things, diarrhea. Id. at 25. The notes indicate 

that the issue had resolved. Appellant apparently reported that the raw egg

diet began afterward and contributed to Decedent’s recovery. Id. at 25. Dr. 

Lowe disapproved but discerned no ill intent in Appellant’s decision to provide 

the supplements and raw eggs. Id. at 63. 

Dr. Lowe advised assistance with issues regarding Decedent’s estate 

and noted that someone with moderate dementia “can be taken advantage 

of” and “very easy to prey upon.” Id. at 45. Dr. Lowe wrote a letter to 

Decedent memorializing Decedent’s clearly expressed wish that his finances 

be available for the long-term care of Hazel, and that the Hood Farm be willed 

to Appellant. Id. at 46. 

Petitioners’ concerns over Appellant’s treatment of Decedent led them 

to file for the appointment of a guardian for Decedent in New York on July 10, 

2012. The guardianship petition stated that Decedent suffered from memory 

loss and confusion, and that Hazel, then age 91, suffered from advanced 

Alzheimer’s. Decedent appeared at the initial proceeding and did not oppose 

appointment of a guardian. The New York Court appointed a temporary 

guardian and issued a preliminary order precluding Appellant from moving 
J-A09006-21

- 11 -

Decedent across state lines. The court also forbade encumbrance of 

Decedent’s property by Petitioners or Appellant. 

Anne Penachio, the New York court-appointed evaluator, confirmed the 

health aide’s attachment to Decedent and concern about Appellant’s negative 

impact on him. Deposition of Anne Penachio, 9/21/15, at 33. Penachio 

interviewed Appellant4 and noted his apparent “controlling influence” over 

Decedent, and his resentment toward Petitioners based on his belief that his 

inheritance was paying for their mother’s health care. Id. at 36-37. Appellant 

became “enraged” at the prospect of Penachio recommending appointment of 

a guardian and told Decedent Penachio wanted to take away his freedom. Id.

at 37. 

According to Penachio, Decedent wanted the Hood Farm to go to 

Appellant, the Valhalla Home to go to Petitioners, and the remainder of the 

estate to be split equally among the three. Id. at 59. Decedent expressed 

frustration with Petitioners not providing for the care of Hazel. Id. at 60. He 

also was upset by the guardianship proceeding. Id. at 65. When Penachio

explained that she was concerned about him being preyed upon, he responded 

that he “had the same concerns.” Id. at 68. Decedent ultimately consented 

to the appointment of a guardian. Id. Decedent told Penachio that the 

caregiver he had before Appellant moved in was “excitable and caused 

____________________________________________

4

 Appellant did not testify at any of the Pennsylvania hearings. 
J-A09006-21

- 12 -

commotion.” Id. at 75. Decedent also said she was too expensive. Id. at 

76-77. 

Pauline Galvin, the New York court-appointed temporary guardian of 

Decedent’s person and property, testified that the creation of a guardianship 

did not affect Decedent’s testamentary capacity. Galvin Deposition, 9/21/15, 

at 5, 40. She believed that Decedent was able to articulate his wishes, and 

that he did not want a guardianship. Id. at 56. Galvin testified that Decedent 

signed a $180,000 mortgage for the Valhalla Home despite an order to the 

contrary. Id. at 10-11, 13-15. Upon the filing of her final report, Galvin 

notified Decedent’s long-time financial advisor Gierling that checks needed to 

be issued to the guardian and court examiner; Gierling responded that 

Decedent’s accounts—formerly worth hundreds of thousands of dollars—had 

been emptied. Id. at 23, 38. Galvin considered this a violation of her 

authority, and the guardianship court issued an order for the return of funds 

to a guardianship account. Id. at 23-25. As of Decedent’s move to 

Pennsylvania, Galvin was no longer guardian of his person because the court 

determined that he did not need a personal guardian. Id. at 31. At a February 

19, 2013 hearing at which Decedent and Appellant both appeared, the New 

York court did not issue any contempt order. The court announced its 

intention to terminate the guardianship, and it issued an order in accord with 

that intent on April 3, 2013. During the guardianship proceeding, Decedent 
J-A09006-21

- 13 -

filed an affidavit stating that he authorized Appellant’s 2011 transfers from his 

Wells Fargo account. Grande Deposition, 9/21/15, at 52-53. (See n. 2). 

In October 2012, while the guardianship proceedings were pending 

against Decedent and Hazel5in New York, Appellant moved them to the Hood 

Farm. There is no evidence Appellant secured any help in caring for Decedent 

and Hazel at the Hood Farm. Dr. Lowe was not consulted about the move to 

Pennsylvania. Lowe Deposition, 9/24/15, at 48. Hazel would have needed a 

home health aide in Pennsylvania; Decedent just needed to continue his 

medicine and periodic blood testing. Id. at 50. 

Petitioners were not informed of this move in advance, and they were 

not permitted to visit Decedent or Hazel in Rouseville. N.T., 9/9/17, at 55-

56. In connection with her investigation for a guardianship proceeding 

concerning Hazel, Penachio reported that she contacted local police upon 

learning that Hazel would be removed from New York despite a court order 

prohibiting it. Penachio Deposition, 9/21/15, at 52-54, 89. Local police 

responded to the Valhalla Home on October 21, 2012, based on a report of a 

moving van in the driveway. At the scene, Sergeant Michael McGuinn of the 

Mount Pleasant Police Department observed Appellant overseeing the loading 

of the van. McGuinn Deposition, 9/23/15, at 16. Appellant told McGuinn he 

was moving Decedent and Hazel to Pennsylvania that day. Id. A health care 

____________________________________________

5

 Petitioners commenced a separate guardianship proceeding for Hazel. 
J-A09006-21

- 14 -

aide named Lily told McGuinn that Appellant told her not to call the police. Id. 

She played a recording of that conversation for McGuinn. Id. at 17. Appellant 

had informed Lily on the day of the move that her services were no longer 

required because Decedent and Hazel were moving. Id. at 17, 42. 

McGuinn described Hazel as “very frail,” and “an empty vessel.” Id. at 

23. Concerned by her appearance when he saw her on October 21, 2012,

McGuinn summoned a paramedic. The paramedic suggested taking Hazel to 

a local medical center, but Decedent refused to permit it. Id. at 17. Decedent 

was adamant about not taking Hazel to the hospital, and about moving to 

Pennsylvania. Id. at 40. According to McGuinn, a longtime acquaintance of 

Decedent, it was “out of character for Decedent to be so forceful.” Id. 

McGuinn read to Decedent and Appellant a New York state court order 

prohibiting Hazel’s transportation out of the state. Id. at 18-19. In response, 

Appellant (or Decedent—it is unclear from the transcript) “gave every 

indication that he didn’t care about the court order.” Id. at 20. Hazel passed 

away shortly after the move. Pamela was unaware of her mother’s passing 

until three weeks after it occurred. N.T., 9/9/17, at 60. 

On January 15, 2013, Appellant took Decedent to the office of Jeffrey 

Banner to have the 2013 Will prepared. The 2013 Will left Decedent’s entire 

estate to Appellant. Banner testified that Decedent appeared competent and 

was able to articulate his wishes. N.T., 9/21/17, at 9. Banner expected any 

new will to be contested, so he wanted to document that the 2013 Will was 
J-A09006-21

- 15 -

executed at Decedent’s direction. Id. at 4. Banner described Decedent as 

“one pissed off marine [...] a very well-educated man, very accomplished, and 

he knew exactly what he wanted to do.” Id. at 7. Banner further described 

Decedent as “[o]ne of the most competent 88-year-old marines I probably 

ever sat with.” Id. at 45. Decedent had a “command presence” when he 

entered a room. Id. at 45. In his conversations with Decedent, Banner found 

Decedent to be very dominant over Appellant. Id. Banner described 

Appellant as “extremely intelligent, yet socially awkward or inept and quiet in 

the presence of Max.” Id. at 9. Banner believed Decedent was “running the 

show.” Id. 

Banner testified that Decedent wanted out of New York, and that he was 

angered by the guardianship proceeding. Id. at 7-8. Banner believed 

Decedent traveled from New York to Pennsylvania to get away from intrusion 

from family and intrusion from lawyers appointed pursuant to the 

guardianship. Id. at 34. According to Banner, Decedent believed Gierling 

was “slippery” and that Petitioners were “bastard crooks” who ripped up the 

2009 Will while he was sick and procured the execution of the 2011 Will. Id.

at 34-35, 39-40. 

As to the details of the New York guardianship, Banner testified that he 

did not have a complete record. Id. at 17. At one point, when asked if he 

was aware of the pending guardianship in New York, Banner responded, 

“Potentially, yes.” Id. at 36. He claimed ne never saw a New York order 
J-A09006-21

- 16 -

prohibiting Decedent from executing a new power of attorney, which Decedent 

did in Banner’s office along with the 2013 Will. Id. at 23. An intake form 

from Banner’s office indicated that Appellant was Decedent’s financial advisor, 

and that Appellant was a professional financial advisor. Id. at 26-27. The 

intake form also indicated that Decedent and his spouse were in good health. 

Id. at 31. All phone calls from Decedent to Banner were on Appellant’s cell 

phone, as Decedent did not have his own phone. Id. at 29-30. Appellant also 

transported Decedent to each of his visits to Banner’s office. Id. at 30. 

Before turning to the merits, we address two preliminary concerns. 

First, Appellant was critically injured in an automobile accident in California in 

December of 2017. His injuries confined him to a nursing home where he died 

on August 22, 2020. On July 9, 2021, Appellant’s counsel filed a document 

titled “Application for Substitution or Non-Substitution of Appellant.” The 

application requests this Court to either substitute Appellant's surviving wife, 

Marcia, as Appellant, or to decide the issues on appeal without substitution for

Appellant. The application avers that Marcia has elected not to open an estate 

for Appellant. Application, 7/9/2021, at ¶¶ 3-5. The only item in Appellant’s 

estate would be his inheritance from Decedent, and the Application avers that 

opening an estate in California and an ancillary estate in Pennsylvania might 

not be worth the cost to Marcia, depending upon the outcome of this appeal. 

Id. 
J-A09006-21

- 17 -

Rule 502 of the Pennsylvania Rules of Appellate Procedure provides, in 

pertinent part: 

(a) Death of a party.--If a party dies after a notice of appeal or 

petition for review is filed or while a matter is otherwise pending 

in an appellate court, the personal representative of the deceased 

party may be substituted as a party on application filed by the 

representative or by any party with the prothonotary of the 

appellate court. The application of a party shall be served upon 

the representative in accordance with the provisions of Pa.R.A.P. 

123. If the deceased party has no representative, any party may 

suggest the death on the record and proceedings shall then be 

had as the appellate court may direct. 

Pa.R.A.P. 502(a). Marcia has not been appointed Appellant’s personal 

representative and does not intend to open an estate for him. Appellant 

therefore relies on the final sentence above, providing that the appeal may 

proceed as this Court may direct upon filing of a suggestion of death. 

Appellant asserts no grounds on which we may order the substitution of 

Marcia. He does not argue that she has standing to be substituted as a party 

in her own right. Instead, he cites Witherspoon v. McDowell-Wright, 241 

A.3d 1182 (Pa. Super. 2020), a conversion action between an estranged 

romantic couple. The appellant in that case appealed from a $7,500.00 

judgment in his favor, and the appellee died after the appeal was filed. This 

Court explained that the “Rules of Appellate Procedure allow for, but do not 

mandate, substitution under these circumstances.” Id. at 1186 (citing 

Pa.R.A.P. 502(a)). The Witherspoon Court noted the distinction between

Rule 502(a) and the trial court rule, which mandates substitution of a personal 

representative, and which has been construed to deprive the trial court of 
J-A09006-21

- 18 -

subject matter jurisdiction absent the appointment of a personal 

representative. Id. (citing Pa.R.C.P. No. 2355; Grimm v. Grimm, 149 A.3d 

77, 84 (Pa. Super. 2016), appeal denied, 169 A.3d 25 (Pa. 2017)). Because 

Rule 502(a) is permissive, the Witherspoon Court held, the lack of 

substitution does not deprive this Court of jurisdiction. Id. Further, the 

appeal was not moot because its outcome had ramifications for the appellant’s 

rights against his former girlfriend’s estate. Id. (citing Shiomos v. 

Commonwealth State Emp. Ret. Bd., 626 A.2d 158, 159 n.1. (Pa. 1993) 

(holding that an appellant’s death does not render an appeal moot where the 

outcome may have relevance to the appellant’s estate or to issues recurring 

statewide)). 

Pursuant to Witherspoon and Shiomos, we conclude that Appellant’s 

death does not deprive this Court of subject matter jurisdiction. We further 

conclude that this appeal is not moot, as it affects Petitioners’ right, if any, to 

recover under the 2011 Will. The outcome will also affect the amount of 

Appellant’s inheritance from Decedent, which will in turn pass from Appellant’s 

estate to any person or entity entitled to recover under any applicable law or 

testamentary document. We therefore accept the application in lieu of a 

separately filed suggestion of death and grant Appellant’s application to 

proceed without substitution of a party.

6

 

____________________________________________

6 For simplicity’s sake, we shall continue to refer to the deceased Appellant as 

“Appellant” herein.
J-A09006-21

- 19 -

Next, we address Appellant’s challenge to the Orphans’ Court’s decision 

to adopt, verbatim, Petitioners’ proposed findings of fact and conclusions of 

law. Our Supreme Court discourages this practice: 

We caution the PCRA court on remand against over-reliance 

upon any party’s submissions as the basis for explaining its 

rulings. We generally discourage the practice of wholesale 

adoption of facts or law as presented by litigants. 

Commonwealth v. Williams, [732 A.2d 1167, 1176 (Pa. 1999)]

(admonishing PCRA court against wholesale adoption of one 

advocate’s position at a critical stage of the proceedings; calling 

for autonomous judicial expression of reasons for decision); Id.

at 1192 (opining that appellate review should not proceed until 

PCRA court files a proper opinion) (Castille, J., concurring).

Moreover, a fact-finding court should support its determinations 

with sufficient explanations of the facts and law, including specific 

citations to the record for all evidence on which it relies, and to 

the legal authority on which it relies, to facilitate appellate review. 

Cf. Commonwealth v. Norris, [389 A.2d 668 (Pa. Super. 

1978)].

Commonwealth v. Weiss, 986 A.2d 808, 816 n. 4. (Pa. 2009). We echo the 

Supreme Court’s admonition here. The Orphans’ Court’s opinion offers little 

in the way of its own analysis—a two-page summary on the concluding two 

pages of a 72-page opinion that otherwise adopts the Appellee’s proposals. 

Nonetheless, this Court has held that a trial court’s adoption of a party’s 

proposed findings does not create reversible error: 

Appellants next contend that the trial court erred by relying 

excessively on the Bank’s proposed findings and adopting many 

of its findings of fact from the Bank’s proposed findings. 

Appellants cite no case law to support this proposition as indeed 

there is none. Rather, the cases hold that it is not error for the 

trial court to adopt a party’s proposed findings of fact and/or 

conclusions of law. In Sotak v. Nitschke, [449 A.2d 729 (Pa. 

Super. 1982)], the court adopted all but one of the plaintiff’s 

proposed findings of fact and conclusions of law. On appeal, we 
J-A09006-21

- 20 -

held that the court may adopt a party’s proposed findings and 

conclusions as it deems warranted or it may state its findings and 

conclusions in its own language. Similarly in Commonwealth ex

rel. Bloomsburg State College v. Porter, [610 A.2d 516 (Pa. 

Cmwlth. 1992)], the court adopted the plaintiff’s findings of fact 

and conclusions of law. The Commonwealth Court held that this 

was not reversible error, citing the statement in Sotak that 

‘Nothing in the rules, however, precludes a court from adopting 

those findings and conclusions proposed by a party. In fact, the 

contrary is implied.’ Bloomsburg State College, 610 A.2d at 

518 (citing Sotak, [449 A.2d 733)]. There is no merit to this 

claim. 

Eighth North-Val, Inc. v. William L. Parkinson, D.D.S., P.C., Pension

Tr., 773 A.2d 1248, 1251–52 (Pa. Super. 2001) (emphasis in original). 

Along with our Supreme Court in Weiss, we disapprove of the Orphans’ 

Court’s wholesale adoption of Appellee’s proposed findings of fact and 

conclusions of law. To facilitate appellate review, the Orphans’ Court should 

have provided its own summary of facts and legal analysis of a voluminous 

record compiled over many years. In accord with this Court’s opinion in 

Eighth North, however, we decline to find reversible error. Petitioners’ 

proposed findings of fact were copiously supported with record citations, and 

our review of the record largely confirms their accuracy. 

We now turn to the central issue in this case: does the record support 

the Orphans’ Court’s conclusion that Petitioners established, by clear and 

convincing evidence, that Appellant exerted undue influence over Decedent, 

and that Appellant failed to rebut that finding by clear and convincing 

evidence. 
J-A09006-21

- 21 -

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.

In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014). “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.” Id. Where the proponent of 

the will presents evidence of the formalities of probate (not at issue presently), 

the burden shifts to the person contesting on grounds of undue influence who 

must prove, by clear and convincing evidence, that:

(1) the testator suffered from a weakened intellect at the 

time the will was executed; (2) there was a person in a 

confidential relationship with the testator; and (3) the person in 

the confidential relationship received a substantial benefit under 

the challenged will. 

Id. at 14. “[U]ndue influence is a subtle, intangible and illusive thing, 

generally accomplished by a gradual, progressive inculcation of a receptive 

mind. Consequently, its manifestation may not appear until long after the 

weakened intellect has been played upon.” In re Estate of Fritts, 906 A.2d 

601, 607 (Pa. Super. 2006), appeal denied, 916 A.2d 1103 (Pa. 2007). 

“Conduct constituting influence must consist of imprisonment of the body or 
J-A09006-21

- 22 -

mind, fraud, or threats, or misrepresentations, or circumvention, or inordinate 

flattery or physical or moral coercion, to such a degree as to prejudice the 

mind of the testator, to destroy his free agency and to operate as a present 

restraint upon him in the making of a will.” In re Estate of Angle, 777 A.2d 

114, 123 (Pa. Super. 2001) (citations and quotation marks omitted). Where 

the contestant establishes the three elements, the burden shifts to the 

proponent to prove, by clear and convincing evidence, the absence of undue 

influence. Nalaschi, 90 A.3d at 14. 

Here, there is no question that Appellant, the person allegedly in the 

confidential relationship with Decedent, received a substantial benefit under 

the 2013 Will. We therefore confine our analysis to whether Decedent suffered 

from a weakened intellect and whether Appellant and Decedent were in a 

confidential relationship. “Weakened intellect in the context of a claim of 

undue influence need not amount to testamentary incapacity and will 

generally be proven through evidence more remote in time from the actual 

date of the will's execution.” Id. (quoting In re Bosley, 26 A.3d 1104, 1112

(Pa. Super. 2011)). There is no bright line test for weakened intellect, but 

our courts “have recognized that it is typically accompanied by persistent 

confusion, forgetfulness and disorientation.” Fritts, 906 A.2d at 607. In 

discerning persistent confusion, “a trial court has greater latitude to consider 

medical testimony describing a decedent’s condition at a time remote from 

the date that the contested will was executed.” Id. 
J-A09006-21

- 23 -

Dr. Lowe testified that, as of mid-2012, Decedent was moderately 

cognitively impaired. He also testified that Decedent’s impairment rendered 

him susceptible to be preyed upon financially. Dr. Lowe also noted persistent 

problems with Decedent’s short-term memory. For these reasons, Dr. Lowe 

asked Decedent about his wishes for his estate and memorialized those wishes 

in a letter to Decedent. At that time, Decedent wanted the Valhalla Home to 

go to Petitioners and the Hood Farm to Appellant, as per the 2011 Will. Dr. 

Lowe’s observations, made within approximately a half year of the execution 

of the disputed 2013 Will, are pertinent to the weakened intellect analysis as 

per Fritts. 

Decedent’s Valhalla neighbor Pierce and Decedent’s lifelong friend 

Bankson, both of whom knew Decedent for much of his life, testified to distinct 

changes in Decedent’s behavior after Appellant arrived. They noticed 

Appellant isolating Decedent and controlling and/or interrupting Decedent’s 

conversations. Other changes accompanied Appellant’s arrival, after many 

years of absence, in Decedent’s life. Decedent went from being furious at 

Appellant’s unauthorized removal of money from Decedent’s Wells Fargo 

account, to filing an affidavit in the New York guardianship proceeding averring 

that he authorized the transfers. Decedent went from speaking highly of 

Petitioners, according to next-door neighbor Pierce, to calling them bastard 

crooks and gold diggers. Decedent also changed health care aide services, 

though it appears there were legitimate financial reasons for doing so. The 
J-A09006-21

- 24 -

changes Appellant made to Decedent’s diet—numerous supplements and raw 

eggs—were bizarre, though they apparently did no lasting harm. Finally, the 

record reflects that Decedent had always taken good care of Hazel, on his own 

at first and then with in-home aides when he was no longer able. But on the 

day of the move to Pennsylvania, he ignored a court order prohibiting her 

removal from New York, and he ignored the suggestion of Sergeant McGuinn 

and a paramedic that Hazel be transported to a nearby hospital for 

observation. Sergeant McGuinn, a longtime acquaintance of Decedent, noted 

that Decedent’s forceful behavior on that occasion was out of character for 

him. 

Regarding Appellant, the record shows he rarely visited or contacted 

Decedent prior to the oil and gas windfall. Appellant told Hazel’s son Malcolm

that he was not leaving Valhalla until his job was done. Appellant repeatedly 

told Penachio that Petitioners were spending his inheritance caring for Hazel. 

He told Bankson he was a financial advisor. He told gas company 

representative McCrary he was a petroleum engineer. He claimed to play a 

leading role in procuring $433,000.00 in oil and gas royalties for Decedent, 

despite testimony to the contrary from McCrary and from Waitz, who 

negotiated the lease on behalf of the landowners. As the Orphans’ Court noted 

in its opinion, Appellant failed to appear to testify in this matter, and failed to 

file an accounting for his time as executor of Decedent’s estate, resulting in 
J-A09006-21

- 25 -

the issuance of a bench warrant and sanctions. Orphans’ Court Opinion, 

7/18/19, at 72. 

After the move, Appellant accompanied Decedent to the law offices of 

Banner for the execution of the 2013 Will. Banner was very forceful in his 

testimony about Decedent’s apparent domination of Appellant. But his 

testimony about Decedent’s personality does not square with others who knew 

Decedent for much of his life, including Pierce and Sergeant McGuinn. Grande, 

who was acquainted with Decedent only from Decedent’s occasional visits to 

the bank, described him as friendly and a bit of a jokester. Banner’s 

credibility—and/or the weight to be given his observation as compared to 

others who knew Decedent longer—was for the Orphans’ Court to decide. 

In summary, there was evidence that Decedent’s dementia had 

progressed to the point where he was susceptible to manipulation. There is 

testimony from non-party longtime acquaintances of Decedent that his 

behavior changed upon Appellant’s arrival. Further, the record contains 

evidence of Appellant’s controlling behavior and dishonesty, and the 

opportunistic timing of his arrival in Valhalla. All these things support a finding 

that Decedent suffered from weakened intellect, and that Appellant worked 

gradually to prejudice Decedent’s mind against Petitioners and leave his estate 

to Appellant. 

Next, we consider whether Appellant and Decedent had a confidential 

relationship. “[A] confidential relationship exists when the circumstances 
J-A09006-21

- 26 -

make it certain the parties do not deal on equal terms, but, on the one side 

there is an overmastering influence, or, on the other, weakness, dependence 

or trust, justifiably reposed.” Nalaschi, 90 A.3d at 15 (quoting In re Estate 

of Boardman, 80 A.3d 820, 823 (Pa. Super. 2013)). A confidential 

relationship “is marked by such a disparity in position that the inferior party 

places complete trust in the superior party's advice and seeks no other 

counsel, so as to give rise to a potential abuse of power.” Fritts, 906 A.2d at

608. “A parent-child relationship does not establish the existence of a 

confidential relationship nor does the fact that the proponent has a power of 

attorney where the decedent wanted the proponent to act as attorney-in-fact.” 

Angle, 777 A.2d at 123. 

The record supports a finding by clear and convincing evidence that 

Appellant gradually gained trust and exerted an overmastering influence over 

Decedent. Appellant controlled whether and when Decedent visited with 

neighbors, friends, and even his stepchildren. Appellant controlled the topics 

of conversation, and, to some extent, what Decedent said during those visits. 

Decedent hired new healthcare aides at Appellant’s behest. Appellant exerted 

some control over Decedent’s diet, accompanied Decedent to doctor’s visits, 

moved Decedent and Hazel to Pennsylvania, and transported Decedent to 

Banner’s office for his consultations regarding the 2013 Will. Decedent’s 

position of complete trust toward Appellant, and the potential for Appellant’s 

abuse of power, is plainly evident. For all the foregoing reasons, we conclude 
J-A09006-21

- 27 -

the record supports the Orphans’ Court’s findings, by clear and convincing 

evidence, that Appellant exercised undue influence over Decedent. 

Furthermore, we cannot conclude that Appellant rebutted the finding of 

undue influence. The record contains nothing to rebut Dr. Lowe’s testimony 

that Decedent’s mental state had declined to the point that he could be easily 

preyed upon, despite his alertness and ability to express his wishes. 

Moreover, the Orphans’ Court clearly credited the testimony about the control 

Appellant exerted over Decedent, and the changes in Decedent’s thinking that 

followed. The court clearly disbelieved or assigned little weight to Banner’s 

testimony given the events that preceded Decedent’s visits to his office. 

We recognize Appellant’s concern about the Orphans’ Court’s reliance 

on Petitioners’ proposed findings of fact. Again, we strongly disapprove of the 

Orphans’ Court’s wholesale adoption thereof. We further agree with 

Appellant’s assertion that in some instances the findings are slanted in 

Petitioners’ favor, as could be expected. We are cognizant that the New York 

court ultimately concluded that Decedent did not need a guardian, that there 

was no legal impediment to Decedent leaving New York, and that various

witnesses, including Dr. Lowe, Penachio, Banner, and others, testified that 

Decedent was alert and could express his wishes. But given Dr. Lowe’s 

testimony that Decedent was susceptible to being preyed upon and given the 

many changes in Decedent’s behavior, lifestyle, and interactions that 

coincided with Appellant’s arrival in Valhalla, culminating in Decedent’s 
J-A09006-21

- 28 -

execution of the 2013 Will, the Orphans’ Court was presented with a judgment 

call as to whether the 2013 Will was the product of Appellant’s undue influence

over Decedent. We discern no reversible error under the applicable standard 

of review. 

Order affirmed. Application for non-substitution granted. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2021