J-S24012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JANE TIMPANO AND KATHRYN 

MAZZANTI, AS SUCCESSORS ACTING IN 

THEIR CAPACITY AS CO-EXECUTRIXES 

OF THE ESTATE OF JAMES C. SCHRY

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DUANE LEE BOTELHO

Appellant No. 834 WDA 2016

Appeal from the Judgment Entered April 27, 2016

In the Court of Common Pleas of Venango County

Civil Division at No(s): Civ No 1115-2013

BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED MAY 05, 2017

Appellant, Duane Botelho, helped James C. Schry maintain Schry’s 

farm in Venango County for many years. In 2011, Botelho, Schry, and a 

third man, Kevin Mazzanti, entered into an oral agreement to plant and 

harvest corn at Schry’s property for profit. The essential contours of the 

agreement had Schry, then approximately 88 years-old, supplying the land 

and other capital for the endeavor, while Botelho, then approximately 46 

years-old, was to provide knowledge and experience from operating a farm. 

Schry incurred substantial debt to finance the project and ultimately 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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terminated the project by filing an action in replevin against Botelho.1 He 

later filed an amended complaint, asserting that Botelho had abused a 

confidential relationship by “persuad[ing] and/or forc[ing]” him to make 

cash transactions that inured solely to Botelho’s benefit.

After a bench trial, the court found that Botelho had exercised undue 

influence over Schry’s decision-making during the project and assessed 

damages and provided other relief to Schry’s estate. On appeal, Botelho 

argues that the trial court erred in concluding that Schry’s estate had 

established that he suffered from a weakened intellect during the project. 

Furthermore, he challenges two aspects of the damages awarded by the trial 

court. After careful review, we conclude that none of Botelho’s claims merit 

relief on appeal, and therefore affirm.

We review a verdict following a non-jury trial as follows. 

Our appellate role in cases arising from non-jury trial verdicts is 

to determine whether the findings of the trial court are 

supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of 

fact of the trial judge must be given the same weight and effect 

on appeal as the verdict of a jury. We consider the evidence in a 

light most favorable to the verdict winner. We will reverse the 

trial court only if its findings of fact are not supported by 

competent evidence in the record or if its findings are premised 

on an error of law. However, where the issue . . . concerns a 

question of law, our scope of review is plenary. 

____________________________________________

1 Schry passed away during the pendency of the action, and his estate was 

duly substituted as plaintiff.
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Stephan v. Waldron Elec. Heating and Cooling, LLC, 100 A.3d 660, 

664-665 (Pa. Super. 2014) (citation and brackets omitted). Further, the 

fact-finder is free to accept or reject the testimony of both expert and lay 

witnesses, and to believe all, part or none of the evidence. See Terwilliger 

v. Kitchen, 781 A.2d 1201, 1210 (Pa. Super. 2001).

Here, the trial court found that Botelho had wielded undue influence 

over Schry during the project and utilized that influence to benefit himself at 

the expense of Schry’s interests. Often, the concept of undue influence is 

addressed in cases arising from a will contest. However, the standards by 

which a claim of undue influence is measured are the same for inter vivos

gifts. See Withers v. Withers, 70 A.2d 331, 332 (Pa. 1950). 

To establish undue influence, a plaintiff must establish three elements 

by clear and convincing evidence. See In re Estate of Ziel, 359 A.2d 728, 

734 (Pa. 1976). First, a plaintiff must establish the existence of a 

confidential relationship between the plaintiff and the defendant. See In re 

Estate of Fritts, 906 A.2d 601, 607 (Pa. Super. 2006). In addition to the 

confidential relationship, a plaintiff must establish that the defendant 

received a substantial benefit pursuant to the confidential relationship. See 

id. Finally, the plaintiff has the burden of establishing that the plaintiff had a 

weakened intellect at the time of the transfer. See id.

If a plaintiff meets these burdens, the burden shifts to the defendant 

to establish the absence of undue influence. See In re Bosley, 26 A.3d 
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1104, 1108 (Pa. Super. 2011). The defendant must meet this burden by 

clear and convincing evidence. See id.

Botelho challenges the trial court’s finding only on the final element, 

that Schry was suffering from a weakened mental state at the relevant time. 

There is no bright line test for determining whether a plaintiff was suffering 

from a weakened mental state. See id. “The weakened mental condition 

which must be shown does not rise to the level of testamentary incapacity.”

Estate of Ziel, 359 A.2d at 734 (citation omitted). Instead, we have 

recognized that it can be established by a showing of “persistent confusion, 

forgetfulness and disorientation.” Estate of Fritts, 906 A.2d at 607. Other 

indications include findings that the plaintiff was not oriented towards reality 

and had been found living in filth, see Estate of Lakatosh, 656 A.2d 1378, 

1385 (Pa. Super. 1995), and where there was conflicting expert opinions on 

whether the plaintiff had suffered from Alzheimer’s disease, see Burns v. 

Kabboul, 595 A.2d 1153, 1163 (Pa. Super. 1991).

Botelho argues that the estate did not establish that Schry was 

suffering from a weakened mental state. He concedes that “[a]t the relevant 

time, [Schry] had mild cognitive impairment and perhaps early vascular 

dementia.” Appellant’s Brief, at 14. However, he contends that these 

circumstances do not rise to the legal level of a weakened mental state, as 

several witnesses testified that Schry was capable of making rational 

decisions.
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In making its findings, the trial court relied upon the testimony of 

psychiatrist Robert Wettstein, M.D. Dr. Wettstein testified that a magnetic 

resonance imaging (“MRI”) scan of Schry’s brain from 2009 revealed 

atrophy, decreased blood flow, and damage resulting from strokes. See 

N.T., 9/14/15, at 144. A second MRI scan from 2010 was requested by 

Schry’s doctors because he was suffering from confusion. See id., at 145. 

There was no significant change in the scan from the 2009 scan. See id.

A computerized tomography (“CT”) scan was taken of Schry’s brain in 

2011 after he had fallen out of his bed and exhibited “a change in mental 

state.” Id., at 146. The discharge summary for this scan indicated that 

Schry was suffering from confusion and had increased forgetfulness. See 

id., at 148. The results of this scan were consistent with the previous MRI 

scans. Two more MRI scans in 2013 were also consistent with the previous 

scans. See id., at 146-147.

Dr. Wettstein also testified that Schry had a longstanding personality 

trait of being “a gullible kind of guy who was easily impressionable and 

persuadable to do things that other people wanted him to do.” Id., at 147. 

He opined that when patients suffer from dementia, their pre-existing 

personality traits are intensified. See id.

Botelho argues that Dr. Wettstein’s personal examination of Schry, in 

2014, was too far removed from the relevant time period to be useful. 

However, the trial court concluded that Dr. Wettstein’s testimony regarding 
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Schry’s medical history was sufficient to establish, clearly and convincingly, 

that Schry was suffering from a weakened intellect during the farming 

project. This finding is well supported by the record, and it does not in any 

way constitute an abuse of the trial court’s wide discretion sitting as a finder 

of fact. We therefore conclude that Botelho’s first argument on appeal merits 

no relief.

Next Botelho argues that the trial court erred in awarding money 

damages to the estate in an amount equivalent to debts incurred by Schry in 

pursuing the farming project. Botelho contends that Schry did not request 

this relief in his complaint. And even if he had, Botelho argues that an award 

of money damages on top of an order requiring Botelho to surrender the 

equipment purchased with the proceeds from these debts results in a double 

recovery for the estate.

In addressing the first part of Botehlo’s argument, we note that, in 

contravention of Pa.R.A.P. 2119(e), Botelho does not identify where he 

raised the issue of the relief requested varying from the relief ordered by the 

trial court. A review Botelho’s post-trial motion reveals that he did not assert 

this basis, but rather focused on whether the award of the value of the debts 

was fair in light of the required return of the equipment purchased. See 

Post-Trial Motion, filed 4/29/16, at ¶¶ 5-7. This argument is therefore 

waived for purposes of this appeal. See Pa.R.A.P. 302(a).
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Turning to Botelho’s preserved argument on this issue, Botelho argues 

that the award of possession of the equipment in addition to the monetary 

damages equivalent to the amount of the debts incurred by Schry was 

unfair. The trial court found that under the agreement between the parties, 

Botelho was responsible for management and bookkeeping for the farming 

project. Botelho has not challenged this finding. Furthermore, the trial court 

found that Botelho’s “inability to recall which funds were used to purchase 

which items stems from his concerted inattentiveness to spending Schry’s 

assets wisely.” This finding is well-supported by the record. 

As noted above, the trial court reasonably found that Botehlo had a 

confidential relationship with Schry. The standard of care imposed by de 

facto confidential relationships is equivalent to the standard of care imposed 

by de jure fiduciary relationships. See Brooks v. Conston, 51 A.2d 684, 

688 (Pa. 1947) (defining confidential relation as a relationship “wherein one 

of the parties is bound to act with the utmost good faith for the benefit of 

the other party and can take no advantage to himself ...”). Since the trial 

court found that Botelho had abused his confidential relationship with Schry, 

it was appropriate for the risk of uncertainty on this issue to be borne by 

Botelho. See In re Estate of Aiello, 993 A.2d 283, 289 (Pa. Super. 2010) 

(holding that fiduciary who engaged in self-dealing bore the burden of 

establishing that plaintiff’s losses would have occurred in absence of self-
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dealing). We therefore conclude that Botelho’s second argument on appeal 

merits no relief.

In his final argument, Botelho contends that the trial court erred in 

failing to credit his testimony that Schry had given a tractor directly to 

Botelho’s daughter as a gift and was not part of the farming project. The 

trial court found this testimony incredible. Furthermore, it found that the fact 

that the tractor was included on a bill of sale that included equipment that 

was utilized for the farming project was a more credible indication of the 

tractor’s status. As noted in our standard of review, the trial court was 

entitled to make reasonable credibility determinations, and we will not usurp 

this discretion on appeal lightly. We cannot conclude that this credibility 

finding was unreasonable, and thus, Botelho’s final issue on appeal merits no 

relief. 

Judgment affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/5/2017