J-A03023-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: LEWIS FULARE, SR.

APPEAL OF: JEROME FULARE AND 

LEWIS FULARE, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 684 WDA 2018

Appeal from the Order April 3, 2018

In the Court of Common Pleas of Blair County Orphans’ Court at No(s): 

2015 OC 244

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 29, 2019

Jerome Fulare and Lewis Fulare, Jr. (collectively “Appellants”) appeal 

from the order entered on April 3, 2018, that denied their petition to surcharge 

and revoke the power of attorney conferred upon their brother, Thomas J. 

Fulare (“Thomas”), by their parents, Lewis Fulare, Sr. and Kathryn Fulare

(“the parents”). After review, we affirm.

The orphan’s court set forth the relevant facts in this matter as follows:

[Appellants] filed the within Petition to Revoke Power of 

Attorney on or about July 17, 2015. The Petition to Revoke Power

of Attorney also included a request for an accounting. [Thomas,

the respondent in the orphans’ court proceedings], filed an Answer 

to the Petition to Revoke Power of Attorney on August 13, 2015. 

A hearing occurred on September 2, 2015[,] which resulted in an 

Order addressing the parties’ agreement regarding the Request 

for Accounting. Compliance issues with the request for an 

accounting resulted in an additional Order of Court on February 

19, 2016.
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The Court conducted a telephone status conference with 

counsel on July 11, 2016. After the telephone conference, the 

Court entered an Order on July 27, 2016, scheduling an 

evidentiary hearing in the matter and directing the parties to 

complete pretrial narratives. [Appellants] filed a Pretrial Narrative 

on September 19, 2016[,] and [Thomas] filed a Pretrial Narrative 

on September 9, 2016. The Court conducted evidentiary hearings 

in this matter on November 15, 2016, March 17, 2017, July 5, 

2017 and August 31, 2017. The evidentiary record was also 

supplemented by a Stipulation of Facts of the Parties dated 

February 7, 2017. The evidentiary record was closed on 

August 31, 2017. The Court entered an Order on August 31, 

2017[,] directing the parties to file Findings of Fact, Conclusions 

of Law, and a Brief in Support of their Positions. [Appellants] filed 

their proposed findings, conclusions and brief on October 26, 

2017. [Thomas] filed his proposed findings, conclusions and brief 

on December 6, 2017. The Court will now proceed to make the

following:

FINDINGS OF FACT:

1. Lewis Fulare Sr. and Kathryn Fulare were husband and wife, 

and they have four (4) children; namely, Carol Owens, Lewis 

Fulare Jr., Jerome Fulare and Thomas ....

2. Thomas ... was appointed by his parents, Lewis Fulare Sr. and 

Kathryn Fulare as their attorney-in-fact by Power of Attorney 

dated December 9, 2010.

3. At the time Thomas ... was appointed Power of Attorney on 

December 9, 2010, Lewis Fulare Sr. was 86 years of age and 

Kathryn Fulare was 82.

4. Lewis Fulare Sr. and Kathryn Fulare resided rent free at a 

property owned by Thomas ... at 203 Short Street, Ramey, 

Pennsylvania at the time of the signing of the Power of Attorney. 

While they didn’t pay rent, Lewis Fulare Sr. and Kathryn Fulare 

agreed to be responsible for expenses.
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5. Lewis Fulare Sr. is alive and is currently living in Golden Living 

Center, located in Altoona, Blair County where he began living 

around October or November of 2013.[1]

6. While the parties to this litigation differ as to the extent of Lewis 

Fulare Sr.’s competency at the time of his entrance into the 

Golden Living Center, it appears at a minimum Mr. Fulare’s mental 

faculties were diminishing. Currently, Lewis Fulare Sr., is 

incompetent to make financial or medical decisions.

7. Kathryn Fulare died on or about November 12, 2013. While the 

parties disagree as to the extent of Kathryn Fulare’s physical and 

mental fitness prior to her death, there is no credible evidence to 

suggest that Kathryn Fulare was incompetent to make financial 

decisions in the relevant time period of this litigation.

8. From December 2010 until present, Lewis Fulare Sr. received 

monthly payments in the approximate amounts; $3,000.00 from 

the VA; $1,300.00 from Social Security; [and] $385.00 from a 

PPG pension.

9. From December 2010 until her death, Kathryn Fulare received 

a small pension of approximately $50.00 per month and a Social 

Security check in the approximate sum of $560.00.

10. It was not uncommon for Kathryn Fulare to keep cash at 

various locations in her home. At times, she would keep 

substantial amounts of money in cash in her home.

11. Lewis Fulare Sr. and Kathryn Fulare conveyed by deed the real 

property at 203 Short Street, Ramey, Pennsylvania 16671 to 

Thomas ... approximately fifteen to twenty years ago and Thomas 

... paid $20,000.00 to his three (3) siblings.

12. Despite the fact that Lewis Fulare Sr. and Kathryn Fulare 

conveyed the 203 Short Street Ramey, Pennsylvania property to 

Thomas ..., they continued to reside at this residence until 

approximately October 2013.

13. Thomas ... married Michelle Fulare (Smith) on September 16, 

2006. They resided in Michelle’s home in Ramey, Pennsylvania 

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1 Appellants note that Lewis Fulare, Sr. passed away on April 5, 2018.
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until they constructed a new home in 2011. Thomas ... has two 

(2) step-children Bailiegh Cannistraci and Barry Kanouff.

14. Prior to his marriage with Michelle, Thomas ... lived at 203 

Short Street, Ramey, Pennsylvania with his parents.

15. Thomas ... is employed at Advance Auto Parts in Tyrone,

Pennsylvania. He previously retired from the Pennsylvania 

Department of Transportation in 2015 after thirty-four and a half 

(341⁄2) years of service.

16. Lewis Fulare Sr.’s monthly invoice for living at Golden Living 

Center is and will continue to be paid for by the Veteran’s 

Administration. As Power of Attorney for his Father, Thomas ... 

pays for Lewis Fulare’s personal care such as hair care and 

clothing.

17. Subsequent to the time that Thomas ... became his parents’

Power of Attorney but prior to his mother’s death and his Father’s 

entrance into Golden Living Center, Thomas engaged in various 

duties on behalf of his parents. Some of these duties included 

making certain that duties such as snow removal and cutting the 

grass were completed. He also took care of their medications and 

arranged for meals to be brought to them. He also retained the 

services of an aide for three (3) days a week that helped them

with their laundry and various other activities.

18. In addition to other activities, Thomas ... as Power of Attorney 

for his parents would also write checks to pay monthly bills for his 

parents. However, during this period of time, his parents were also 

writing out their own checks and taking care of some of their own 

financial affairs. Mr. and Mrs. Fulare would also pay some of their 

bills with cash.

19. Lewis Fulare Sr. and Kathryn Fulare lived modestly, but they 

were very generous to their children and their spouses, 

grandchildren, and step-grandchildren with monetary gifts for 

birthdays, holidays, graduations, vacations, and other necessities 

and gifts.

20. Lewis Fulare Sr. and Kathryn Fulare’s generosity at times 

resulted in monetary gifts in substantial amounts. For example, 

Thomas ... received $10,000.00 from his parents in 2011 and 
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Jerome Fulare’s son received $10,000.00 as a gift for his 16th

birthday.

21. During the time that Thomas ... was Power of Attorney for his 

parents, he was aware of instances where he or his parents would 

deposit part of their monthly income checks into the bank and 

maintain the balance of those checks in cash. These actions 

resulted in Thomas ... being aware of his mother having large sums 

of cash in the home.

22. During the time that Thomas ... was Power of Attorney, he was 

aware of Lewis and Kathryn Fulare cashing out large sums of 

money from various investments. These investment accounts 

included of sums of money from Capital World stock, PPG stock, 

and Lewis and Kathryn Fulare’s Knights of Columbus account.

23. After his mother’s death, Thomas ... reimbursed his father’s 

checking account the sum of $4,818.41 after it was questioned as 

to whether or not he should have properly received those funds. 

Much of these funds were expenditures made by Thomas ... for 

maintenance and utilities for the 203 Short Street, Ramey, 

Pennsylvania property after his Father had been placed in Golden 

Living Center. In addition to the above findings of fact, this Court 

also acknowledges that the extensive testimony revealed 

numerous bank records which we find credible and reliable. In 

addition, we also find the report of Young Oakes and Brown as a 

credible and reliable report which has relevance to this matter.

Orphans’ Court Opinion, 4/3/18, at 1-6.

On April 3, 2018, the orphans’ court denied Appellants’ petition to 

surcharge and revoke the power of attorney conferred upon Thomas.2 On 

May 2, 2018, Appellants filed a timely notice of appeal. Both the orphans’

court and Appellants complied with Pa.R.A.P. 1925.

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2 On April 12, 2018, Appellants filed a post-trial motion in the nature of 

exceptions to the orphans’ court’s order. This filing was not permitted. See 

Pa.O.C.R. 8.1 (“[N]o exceptions or post-trial motions may be filed to any order 

or decree of the court.”).
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On appeal, Appellants present the following issues for this Court’s 

consideration:

A. Whether the lower Court erred or abused its discretion in 

refusing to impose a surcharge against [Thomas] for his failure as 

power of attorney to exercise common prudence, skill and caution 

in the performance of his fiduciary duties and/or violated his duty 

of care as power of attorney?

B. Whether the lower Court erred or abused its discretion in failing 

to address in its Opinion and Order the issues raised by Appellants

concerning the $7,500.00 gift to Barry Kanouff, transfer of 2012 

Envoy and various home improvement and repairs and enter a 

surcharge against [Thomas]?

Appellants’ Brief at 5.3 

Appellants assert that the orphans’ court erred or abused its discretion 

in refusing to impose a surcharge against Thomas for his failure in the 

performance of his fiduciary duties.4 We point out that the party seeking to 

impose a surcharge bears the burden of proving a surcharge is warranted. 

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In their brief, Appellants have abandoned seeking removal of Thomas as 

power of attorney because the parents are now deceased, and the issue is 

moot. On appeal, they challenge only the orphans’ court’s denial of their 

petition to surcharge Thomas. Appellants’ Brief at 8. 

4 Appellants’ issues are interrelated. Although the orphans’ court did not 

specifically mention the 2012 GMC Envoy, it thoroughly considered the 

parents’ course of conduct in providing gifts to their family during their 

lifetime, including generous gifts to the parties’ children and step-children. 

Orphans’ Court Opinion, 4/3/18, at 5. The orphans’ court concluded there 

was insufficient evidence to establish that Thomas engaged in any dispositions 

that would warrant a surcharge. Id. at 10. Accordingly, as did the orphans’ 

court, we address Appellants’ issues concurrently.
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Matter of Estate of Campbell, 692 A.2d 1098, 1104 (Pa. Super. 1997). Our 

standard of review is well settled:

In reviewing the decision of the orphans’ court, this Court’s 

responsibility is to assure that the record is free from legal error 

and to determine if the orphans’ court’s findings are supported by 

competent and adequate evidence. In determining whether the 

findings of the orphans’ court are supported by competent 

evidence, we must take as true all the evidence supporting the 

findings and all reasonable inferences therefrom. Further, all 

conflicts in testimony must be resolved by the hearing judge, who 

is the sole arbitrator of credibility. Findings of the orphans’ court

supported by evidence of record are entitled to the same weight 

given a jury verdict and must be sustained unless the court 

abused its discretion or committed an error of law.

In re Estate of Plance, 175 A.3d 249, 259-260 (Pa. 2017).

The orphans’ court addressed the surcharge issue as follows:

After careful consideration of the arguments of the parties 

and a review of the totality of the extensive record in this case, 

this Court finds that [Appellants] have failed to prove by a 

preponderance of the evidence that [Thomas] misappropriated his 

parents’ funds for his own benefit. In addition, we believe the 

evidence has failed to establish that the funds dispersed were not 

dispersed by Lewis and Kathryn Fulare with their knowledge and 

approval. We acknowledge that during the relevant time period in 

this case, Kathryn Fulare was in her 80’s. However, we find no 

credible evidence to suggest that Kathryn Fulare was incompetent 

to make financial decisions on her own behalf. Both parties agree 

that Lewis and Kathryn Fulare were generous with their money. 

The record supports a conclusion that at times, Lewis and Kathryn 

Fulare would gift large sums of money to their family. The 

evidence also established that Lewis and Kathryn Fulare were 

sometimes present when withdrawals were made from their 

accounts. In light of the fact that we believe that Kathyrn Fulare 

was competent to make her own financial decisions and that she 

would routinely give away sums of money, we find that it would 

be engaging in speculation to make assumptions about what she 

did or did not do with her and her husband’s money. Even 

assuming that [Thomas] breached a duty to his parents, we 

cannot conclude that any breach on his part resulted in any related 
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loss to the estate of Kathryn and Lewis Fulare. For this reason, 

we conclude that [Appellants] have failed to satisfy their burden 

to establish that a surcharge is warranted. We find [Thomas’s] 

argument convincing that he was not responsible for determining 

what his parents would do with money that was provided to them.

Orphans’ Court Opinion, 4/3/18, at 9-10.

We discern no abuse of discretion or error of law in the orphans’ court’s 

findings that the parents were competent to make gifts of their personal 

property and that the evidence did not establish any breach of fiduciary duty 

that would warrant a surcharge. Moreover, there was ample evidence 

establishing that the parents often made generous gifts to their family. See

N.T. (Thomas’s Testimony), 11/15/17, at 44-45; N.T. (Appellant Jerome’s 

Testimony), 7/5/17, at 52, 75; N.T. (Appellant Lewis’s Testimony), 8/31/17, 

at 31-33 (discussing the monetary gifts that their parents made). Pursuant 

to our standard of review, we must defer to the orphans’ court’s 

determinations of credibility. Plance, 175 A.3d at 259-260. After our review 

of the record, we conclude that Appellants have not established that the 

orphans’ court erred or abused its discretion; Appellants failed to meet their 

burden to warrant a surcharge.

For the reasons set forth above, we conclude that Appellants are entitled 

to no relief. Accordingly, we affirm the April 3, 2018 order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/2019