J-A10034-15

1

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MONICA CLARK IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LESLIE MCDERMOTT AND EDSON 

CRAFTS, EXECUTORS OF THE ESTATE OF 

DANIEL M. CLARK, AND CMS COMPUTER 

SERVICES, INC.

Appellees No. 240 MDA 2014

Appeal from the Order January 7, 2014

In the Court of Common Pleas of Huntingdon County

Civil Division at No(s): 10-1017

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MAY 01, 2015

Monica Clark (“Wife”) appeals from an order granting summary 

judgment to Leslie McDermott and Edson Crafts, personal representatives of 

the estate of Daniel Clark, deceased, and CMS Computer Services, Inc. 

(“CMS”), a corporation that Daniel Clark owned. We affirm.

The record reflects the following: Wife is the widow and sole heir of 

Robert Clark (“Husband”), who died on November 6, 2003. On December

19, 2003, Wife and her son, Daniel Clark (“Son”), were appointed as coexecutors of Husband’s estate. Husband’s life was insured under three 

policies: (1) a $1,000,000 Hartford Life Insurance Company policy naming 

Son as the owner and beneficiary; (2) a $250,000 Principal Life Insurance 
J-A10034-15

- 2 -

Company policy which named Wife as the beneficiary; and (3) a $250,000 

Hartford Life Insurance Company policy that named Wife as the beneficiary. 

Wife received the proceeds of the $250,000 Principal Life policy and the 

$250,000 Hartford Life policy. 

Furthermore, at the time of his death, Husband owned real estate and 

personal property connected to his business which Wife inherited. On 

February 10, 2005, Wife conveyed her title and interest in this real estate 

and personalty to Son in consideration for $80,000. The HUD-1 settlement 

statement executed at closing states that the contract price of $80,000 was 

for “real estate and personalty.” 

On July 14, 2008, Son died. On August 4, 2008, letters testamentary 

were granted to McDermott and Crafts as personal representatives of Son’s 

estate. 

On July 13, 2010, Wife filed a civil action against McDermott, Crafts, 

and CMS. Count I of Wife’s complaint alleged conversion of the $1,000,000 

Hartford policy (even though her son was the sole named beneficiary of the 

policy) and of “tangible personal and business property of [Husband].”1 

Count II alleged that Son defrauded Wife by lying that he would “invest her 

share” of the $1,000,000.00 Hartford policy on her behalf and “hold estate 

____________________________________________

1 Wife’s Complaint, ¶ 20.
J-A10034-15

- 3 -

assets on [her] behalf” but then transferring these assets into his sole 

name.2

Appellees filed an answer and new matter to the complaint and 

subsequently moved for summary judgment. In their summary judgment 

motion, Appellees asserted that the $1,000,000 Hartford policy 

unequivocally lists Son as the sole beneficiary. In her response, Wife 

admitted, in so many words, that Son is the sole beneficiary of this policy,3

but she then insisted (contradictorily) that Son promised to invest her 

alleged share of these proceeds on her behalf and then broke his promise.4

With regard to the issue of personalty, Wife contended that Son 

misappropriated items that Father kept at his real estate business, including 

office furniture, computers, an oriental rug, a fax machine, filing cabinets, 

air conditioners, a washer and dryer, kitchen appliances and business 

____________________________________________

2

Id., ¶¶ 25, 28.

3 Executors’ Motion For Summary Judgment, ¶ 8 (averring that “[Son] at all 

times was the sole beneficiary of the $1 million Hartford Life Insurance 

policy”); Wife’s Answer To Motion For Summary Judgment, ¶ 8 (responding 

that the policy “speaks for itself” but admitting that Son’s name “appears in 

block 3B as the ‘beneficiary’ ”).

4 Wife’s Answer To Motion For Summary Judgment, exhibit 1 (paragraphs 

10-11 of Wife’s Affidavit; “[Son] advised me that he was investing the 

money for me in order to provide for my needs for the remainder of my life 

... Because of [Son’s] experience in financial matters ... as a public 

accountant with [Husband], and because of my lack of involvement or 

experience in such matters, I relied on [Son] to take care of the monies left 

for me by [Husband], including the life insurance proceeds”).
J-A10034-15

- 4 -

records.5 Appellees argued in their summary judgment motion that Wife 

conveyed this personalty to Son on February 10, 2005, the date she deeded 

Son the real estate on which Father’s business was located.6 The HUD-1 

form that Wife signed at settlement on that date stated that she sold “real 

estate & personalty” to Son for $80,000.7 

Wife responded that this notation on the HUD-1 form was an 

“afterthought” inserted “at the request of [Son],” citing testimony from an 

attorney who provided advice both to Wife and Son during the closing.8 

Based on the attorney’s testimony, Wife claims that she only intended to sell 

real estate, that there was no meeting of the minds as to the meaning of 

“personalty”,9and no consideration paid for this “personalty”.10 

In a memorandum and order docketed on January 7, 2014, the trial 

court granted summary judgment to Appellees and dismissed Wife’s action 

____________________________________________

5 Executors’ Response To Wife’s List Of Claims, exhibit A.

6 Executors’ Motion For Summary Judgment, ¶ 44.

7

Id., exhibit 1 (HUD-1 statement).

8 Wife’s Brief In Opposition To Motion For Summary Judgment, pp. 7-9 

(citing attorney Harvey Reeder’s deposition testimony, pp. 42-53, 75-78 

(attached as exhibit 2 to Answer To Motion For Summary Judgment)).

9

Id., p. 8.

10 Wife’s Answer To Motion For Summary Judgment, exhibit 1 (Wife’s 

Affidavit), ¶ 19 (“I never executed a bill of sale for any personal property, 

nor did I agree to convey personal property to [Son] as part of the 

$80,000.00 ...”). 
J-A10034-15

- 5 -

with prejudice. Wife filed a timely appeal and a timely Pa.R.A.P. 1925(b) 

statement. The trial court subsequently filed a Pa.R.A.P. 1925(a) opinion.

Wife raises three issues on appeal:

Did the trial court commit an error of law or abuse 

its discretion when it granted summary judgment for 

[Appellees] where genuine issues of material fact 

exist relative to whether all of the business assets, 

both tangible and intangible, of [Husband] were 

conveyed by [Wife] to [Son] by her 2005 deed?

Did the trial court commit an error of law or abuse 

its discretion when it granted summary judgment for 

[Appellees] where genuine issues of material fact 

exist relative to the nature of the representations 

made by [Son] to [Wife], the falsity of the 

statements, and the reasonableness of [Wife’s] 

reliance on those statements under the 

circumstances?

Did the trial court commit an error of law or abuse 

its discretion when it granted summary judgment for 

[Appellees] where genuine issues of material fact 

exist relative to the time at which [Wife] knew or 

should have known of the misrepresentations of 

[Son] and hence the time when the statute of 

limitations began to run?

Brief For Appellant, p. 4.

When reviewing a trial court’s grant of summary judgment, our 

standard and scope of review are as follows:

[O]ur scope of review is plenary, and our standard of 

review is the same as that applied by the trial court. 

Our Supreme Court has stated the applicable 

standard of review as follows: [A]n appellate court 

may reverse the entry of a summary judgment only 

where it finds that the lower court erred in 

concluding that the matter presented no genuine 

issue as to any material fact and that it is clear that 
J-A10034-15

- 6 -

the moving party was entitled to a judgment as a 

matter of law. In making this assessment, we view 

the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved 

against the moving party. As our inquiry involves 

solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to 

determine whether the record either establishes that 

the material facts are undisputed or contains 

insufficient evidence of facts to make out a prima 

facie cause of action, such that there is no issue to 

be decided by the fact-finder. If there is evidence 

that would allow a fact-finder to render a verdict in 

favor of the non-moving party, then summary 

judgment should be denied.

Mull v. Ickes, 994 A.2d 1137, 1139–40 (Pa.Super.2010).

For the sake of convenience, we organize our analysis in a different 

sequence than the arguments in Wife’s brief. We first conclude that the trial 

court properly granted summary judgment to Appellees with regard to the 

insurance proceeds in the $1,000,000 Hartford policy. We then conclude 

that the trial court properly granted summary judgment to Appellees with 

regard to the personalty claimed by Wife. 

Insurance proceeds. Conversion is the “deprivation of another’s 

right of property in, or use or possession of, a chattel ... without the owner’s 

consent and without lawful justification.” McKeeman v. Corestates Bank, 

751 A.2d 655, 659 n.3 (Pa.Super.2000).

To establish fraud, the plaintiff must show: (1) a representation; (2) 

which is material to the transaction at hand; (3) made falsely, with 
J-A10034-15

- 7 -

knowledge of its falsity or recklessness as to whether it is true or false; (4) 

with the intent of misleading another into relying on it; (5) justifiable 

reliance on the misrepresentation; and (6) the resulting injury was 

proximately caused by the reliance. Hart v. Arnold, 884 A.2d 316, 339 n.7 

(Pa.Super.2005). 

Wife argues in her appellate brief that Son defrauded her out of the 

proceeds of the $1,000,000 Hartford policy,11 but she does not argue that 

Son converted her insurance proceeds. Therefore, she has waived her claim 

of conversion with regard to the insurance proceeds. Commonwealth v. 

Johnson, 985 A.2d 915, 925 (Pa.2009) (issues not developed in appellant’s 

brief are waived for review on appeal).

With regard to fraud, the trial court correctly determined that Wife had 

no interest in the $1,000,000 Hartford policy, because Son was the sole 

beneficiary. Moreover, Wife was fully aware that Son was the sole 

beneficiary of this policy, because she signed four personal financial 

statements that identified Son as the beneficiary. Since she knew that she 

was not entitled to any proceeds from this policy, she had no right to rely on 

Son’s alleged promise to invest some of the proceeds for her benefit.12

____________________________________________

11 Brief, pp. 13-15. 

12 Further, as noted on pages 1-2 supra, Wife was the beneficiary of two 

other $250,000 insurance policies.
J-A10034-15

- 8 -

Personalty. Wife waived her fraud claim with regard to personalty. 

Although she alludes to fraud in boilerplate fashion in her answer to 

Appellees’ motion for summary judgment,13 she fails to develop her fraud 

argument further. Her memorandum in opposition to summary judgment 

discusses contract law concepts instead of fraud. 

A brief review of the evidence will place Wife’s waiver in context. 

Wife’s February 10, 2005 conveyance to Son included both realty and 

personalty that she inherited from Husband. The HUD-1 statement signed 

by both Wife and Son (1) identifies the location of Husband’s realty as 

“Borough of Huntingdon, Huntingdon County, Pennsylvania, Tax Map No. 18-

01-31”; (2) specifies the items of sale as “real estate & personalty”; and (3) 

provides that Wife agreed to sell the “real estate & personalty” to Son for a 

lump sum of $80,000. The certification on the second page of the HUD-1 

statement provides: “I have carefully reviewed the HUD-1 Settlement 

Statement and to the best of my knowledge and belief, it is a true and 

correct statement of all receipts and disbursements on my account or by me 

in this transaction ...” Wife’s signature appears directly beneath this 

certification. The meaning of this document is plain: Wife agreed to sell all 

real estate and all personalty for one lump sum of $80,000. Wife 

____________________________________________

13 Wife’s Answer to Motion For Summary Judgment, ¶ 47 (“[Wife] was 

assured at all times by [Son] that he was maintaining these [personal] 

assets for her benefit”).
J-A10034-15

- 9 -

understood or should have understood the meaning of the document, 

particularly in view of her certification that she carefully reviewed its 

contents and found them true and correct. 

Conspicuously absent from Wife’s memorandum in response to 

Appellees’ motion for summary judgment is any argument that Son 

defrauded her into signing the HUD-1 form. Instead, Wife argued that there 

was no meeting of the minds with regard to the meaning of “personalty”, 

and that she received $80,000.00 only as consideration for real estate but 

not personalty -- contract law concepts that do not suggest that Son misled 

Wife with a false misrepresentation, the essence of fraud. Hart, supra. By 

failing to argue fraud at the summary judgment stage, Wife waived her right 

to argue fraud in this appeal. See Walsh v. Borczon, 881 A.2d 1, 5-6 

(Pa.Super.2005) (patient waived, for purposes of appeal, her challenge to 

physician's claim to qualified immunity under the Mental Health Procedures 

Act (MHPA) by failing to raise that argument in opposition to physician's 

motion for summary judgment; the only argument patient presented in 

opposition to physician's summary judgment motion was that she had pled 

sufficient facts to present jury question as to whether physician's acts 

constituted gross negligence, and in her statement of matters complained of 

on appeal, patient, for the first time, directly raised argument that 

physician's acts related to voluntary outpatient treatment and therefore were 

not covered by immunity provisions of MHPA).
J-A10034-15

- 10 -

Wife did raise a conversion argument at the summary judgment stage 

below, and she raises it again in this Court, but it is devoid of merit. 

According to Wife, (1) there was no meeting of the minds concerning the 

meaning of “personalty” in the HUD-1 statement, and (2) she received no 

consideration for personalty; thus, (3) by obtaining the personalty without 

consideration, Son converted the personalty. The flaw in this argument is 

that the HUD-1 statement was clear on its face, and Wife acknowledged via 

signature that she read the entire statement and understood that it was true 

and correct. Thus, there was a meeting of the minds, reduced to an 

integrated written instrument, for Wife to receive $80,000 from the sale of 

both realty and personalty. Johnson v. Southeastern Pennsylvania 

Transportation Authority, 570 A.2d 71, 73 (Pa.1990) (basic elements of 

valid written contract are: “the parties must be known; the terms ... must be 

definite; and the writing must, when plainly construed, indicate an 

agreement or meeting of the minds on the terms”). Thus, as a matter of 

law, Son did not convert the personalty; he received it as part of a valid 

agreement. 
J-A10034-15

- 11 -

Conclusion. For these reasons, the trial court properly entered 

summary judgment in favor of Appellees on Wife’s fraud and conversion 

actions.14

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/1/2015

____________________________________________

14 In view of the foregoing analysis, it is unnecessary for us to review the 

trial court’s alternative grounds for granting summary judgment, particularly 

the statute of limitations issue in pages 9-11 of its January 7, 2014 

memorandum and order.