J-S17017-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF JOHN D. NEWCOMER, 

DECEASED,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

APPEAL OF: CLARENCE NEWCOMER, 

EXECUTOR OF THE ESTATE OF JOHN D. 

NEWCOMER, DECEASED,

Appellant No. 653 WDA 2014

Appeal from the Order Entered March 31, 2014

In the Court of Common Pleas of Fayette County

Orphans’ Court at No(s): 2613-0616

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015

Appellant, Clarence Newcomer, appeals from the order entered on 

March 31, 2014, directing that the proceeds from an annuity owned by John 

D. Newcomer, Sr., Appellant’s Father (“Decedent”), be paid to Theresa 

Charnovich (“Ms. Charnovich”) instead of Appellant and his brother, John D. 

Newcomer, Jr. We affirm.

The record reveals that on November 21, 2013, Ms. Charnovich, 

Decedent’s girlfriend of twenty-eight years, petitioned the Orphans’ Court to 

issue a rule to show cause in an effort to recover approximately $40,000.00 

that was deposited with American General Life Insurance in an annuity (“the 

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*

 Former Justice specially assigned to the Superior Court.
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annuity”), which was payable on the death of Decedent. This annuity was 

purchased by Decedent on July 1, 2010, and he named Ms. Charnovich as 

the sole beneficiary. On May 11, 2011, Decedent executed a Power of 

Attorney (“POA”) that named his son, John D. Newcomer, Jr., his attorney in 

fact. On February 20, 2013, John D. Newcomer, Jr. executed a Beneficiary 

Change Request form that removed Ms. Charnovich, and named himself and 

Appellant as the beneficiaries of the annuity. 

Decedent died testate on July 10, 2013, and on November 6, 2013, 

Decedent’s Last Will and Testament was filed in the Orphans’ Court.1 On 

November 21, 2013, Ms. Charnovich filed the aforementioned petition, and 

the Orphans’ Court issued a rule directing Appellant to show cause why the 

$40,000.00 annuity should not be paid to Ms. Charnovich. Appellant 

responded, and briefs and exhibits were filed. A hearing was held on 

February 18, 2014. Following the hearing, the Orphans’ Court concluded 

that despite the authority granted to John D. Newcomer, Jr. by virtue of the 

POA, he had engaged in deception and attempted to commit a fraud by 

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1

 Decedent bequeathed his real property, personal property, household 

furnishings, equipment, and automobiles to John D. Newcomer, Jr. 

Decedent’s Last Will and Testament, 11/18/05, at 1. Decedent also 

bequeathed two Prudential annuities, two State Farm annuities, Marathon Oil 

Stock, a Lincoln annuity, U.S. Steel Stock, and National City Stock to 

Appellant and John D. Newcomer, Jr. to share and share alike. Id. at 2. 

There were six specific bequests of $5,000.00 each to six grandchildren, and 

the rest and residue of Decedent’s estate was left to Appellant and John D. 

Newcomer, Jr. to share and share alike. Id. 
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signing his father’s name on the Beneficiary Change Request form as

opposed to signing his own name as attorney in fact pursuant to the POA. 

On March 31, 2014, the Orphans’ Court, concluding that the Beneficiary 

Change Request form was a nullity due to John D. Newcomer, Jr.’s 

misconduct, directed that the annuity be paid to Ms. Charnovich as Decedent 

had intended. Appellant timely appealed.

On appeal, Appellant raises the following issues for this Court’s 

consideration:

1) Whether the beneficiary change form signed by the agent of 

the deceased was valid to change the beneficiary of the annuity.

2) Whether the Power of Attorney was disavowed as a source of 

authority.

3) Whether the agent of the deceased could have properly 

changed the beneficiary of the annuity under the powers granted 

by the Power of Attorney.

Appellant’s Brief at 3 (unnumbered pages). Because these issues are 

inextricably related, we shall address them together.

Our standard of review is well settled:

The findings of a judge of the Orphans’ Court division, sitting 

without a jury, must be accorded the same weight and effect as 

the verdict of a jury, and will not be reversed by an appellate 

court in the absence of an abuse of discretion or a lack of 

evidentiary support. This rule is particularly applicable to 

findings of fact which are predicated upon the credibility of the 

witnesses, whom the judge has had the opportunity to hear and 

observe, and upon the weight given to their testimony. In 

reviewing the Orphans’ Court’s findings, our task is to ensure 

that the record is free from legal error and to determine if the 

Orphans’ Court’s findings are supported by competent and 
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adequate evidence and are not predicated upon capricious 

disbelief of competent and credible evidence.

In re Estate of Bechtel, 92 A.3d 833, 837 (Pa. Super. 2014) (citations 

omitted). The fiduciary duties of an agent acting under a POA are set forth, 

in part, as follows: 

(e) Fiduciary relationship.—An agent acting under a power of

attorney has a fiduciary relationship with the principal. In the 

absence of a specific provision to the contrary in the power of 

attorney, the fiduciary relationship includes the duty to:

(1) Exercise the powers for the benefit of the 

principal.

(2) Keep separate the assets of the principal from 

those of an agent.

(3) Exercise reasonable caution and prudence.

(4) Keep a full and accurate record of all actions, 

receipts and disbursements on behalf of the 

principal.

20 Pa.C.S. § 5601(e).2

Appellant avers that the Pennsylvania Supreme Court’s decision in In 

re Estate of Slomski, 987 A.2d 141 (Pa. 2009), wherein the Court held 

that a POA permitted the principal’s agent the power to change beneficiaries, 

supports his position that the Orphans’ Court erred. Appellant’s Brief at 7 

(unnumbered pages). While Slomski undoubtedly permitted the agent in 

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2

 While this statutory language was operative at all times relevant to this 

litigation, we note that effective January 1, 2015, 20 Pa.C.S. § 5601 was 

repealed and this language was integrated into the newly enacted 20 Pa.C.S. 

§ 5601.3.
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that case to change the beneficiary on a retirement account,3its holding is 

inapposite here. In Slomski, the agent signed the beneficiary change form 

as the attorney in fact for the principal under a POA. Id. at 142. 

Conversely, in the case at bar, the Orphans’ Court held that John D. 

Newcomer, Jr., did not sign the Beneficiary Change Request form in his own 

name pursuant to the POA. Rather, he engaged in misconduct and sought 

to pass-off his signature as that of Decedent’s. Thus, John D. Newcomer, Jr. 

was not acting under authority vested in him by the POA; he had engaged in 

a subterfuge and the holding in Slomski has no bearing on our decision.

The Orphans’ Court addressed John D. Newcomer, Jr.’s misconduct as 

follows:

In this case, it is clear that John D. Newcomer, Jr. 

attempted to pass his signature as being the signature of his 

father—at a time when his father was clearly incompetent to 

take any such action himself. There was testimony that there 

was no such intent, but this Court is persuaded otherwise. By 

signing as “John D. Newcomer” without designating himself as 

“Jr.”—as consistently set forth in the Power of Attorney that gave 

him the authority to act for his father—and by failing to refer to 

the Power of Attorney—he disavowed the Power of Attorney as a 

source of authority.

In addition, 20 Pa.C.S.A. § 5601.2 (e) provides:

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3

 The Court in Slomski determined that the agent could change the 

beneficiary on a retirement account because the “power to engage in 

retirement plan transactions” was specifically included in the POA. This 

power was statutorily defined to include the power to “exercise all powers 

with respect to retirement plans that the principal could if present,” pursuant 

to 20 Pa.C.S. § 5603(q), and this included the power to change the 

beneficiary designation on the retirement plan. Slomski, at 142-143. 
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“Equity.—An agent and the donee of a gift shall be 

liable as equity and justice may require to the extent 

that, as determined by the court, a gift made by the 

agent is inconsistent with prudent estate planning or 

financial management for the principal or the known

or probable intent of the principal with respect to 

disposition of the estate.” (emphasis supplied)[4]

Finally, John D. Newcomer, Jr. signed an acknowledgment 

when the Power of Attorney was granted that included, inter alia, 

“I shall exercise the powers for the benefit of the principal;” and 

“I shall keep the assets of the principal separate from my 

assets;” and [“]I shall keep a full and accurate record of all 

actions....” He did not perform any of these acknowledged 

duties. Instead he tried to cheat his father’s paramour of twentyeight years out of an asset specifically set aside for her, he 

attempted to convert that asset to an asset of his and his 

brother’s, and he failed to keep accurate records as to who 

actually signed the Beneficiary Change Request.

The issue is not what John D. Newcomer, Jr. could properly

have done, it is whether what he actually did is legally valid. 

This Court finds that his execution of the beneficiary change 

form as “John D. Newcomer” under the circumstance[s] 

presented here is a legal nullity. As a result, the proceeds of the 

annuity should have been paid out as if the Beneficiary Change 

Request form was never signed by anyone. Under the facts of 

this case, this Court finds that the proceeds of the American 

General Life Insurance annuity should have been paid to Theresa 

Charnovich, or her heirs and assigns.

Orphans’ Court Opinion and Order, 3/31/14, at 2-3 (emphases in original).

Appellant also argues that John D. Newcomer, Jr. does not use “Jr.” 

when he signs his name. Appellant’s Brief at 6 (unnumbered pages). This is 

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4

 Similar to the repeal of 20 Pa.C.S.A. § 5601, which is noted above, this 

statutory language from 20 Pa.C.S.A. § 5602.1 was operative at all times 

relevant to this litigation, and effective January 1, 2015, 20 Pa.C.S.A. 

§ 5602.1 was repealed and this language was subsumed within 20 Pa.C.S.A. 

§ 5603.
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refuted by the record. The Orphans’ Court concluded and the record reflects 

that Appellant’s brother routinely signed his name as “John D. Newcomer, 

Jr.” Orphans’ Court Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion, 

8/29/14, at 2. John D. Newcomer, Jr. signed his name in this fashion on 

both the POA and on the line marked “signature of beneficiary” on the 

benefits claim form. However, it was only on the line marked “signature of 

owner” on the Beneficiary Change Request form that he signed as “John D. 

Newcomer” without using “Jr.” and no mention of the POA. 

Appellant further claims that John D. Newcomer, Jr. sent a copy of the 

POA to American General Life Insurance along with the Beneficiary Change 

Request form. Appellants’ Brief at 6 (unnumbered pages). However, there 

is no evidence that a copy of the POA was sent to American General Life 

Insurance, and the Orphans’ Court found that John D. Newcomer, Jr.’s 

testimony, on the whole, was not worthy of belief. Orphans’ Court 

Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion, 8/29/14, at 2. As noted 

above, credibility determinations are left to the Orphans’ Court. In re 

Estate of Bechtel, 92 A.3d at 837.

We agree with the Orphans’ Court’s conclusion that John D. 

Newcomer, Jr. engaged in deception, and we discern no abuse of discretion 

in the Orphans’ Court’s conclusions. Through his deception and effort to 

obtain the proceeds of the annuity, John D. Newcomer, Jr. breached his 

fiduciary duty to Decedent, and he was not exercising his powers for the 

benefit of Decedent in violation of former 20 Pa.C.S. § 5601(e). Moreover, 
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while John D. Newcomer, Jr. may arguably have had the authority pursuant 

to the POA to change the beneficiary of the annuity, the fact that he 

engaged in the deception set forth above supports the Orphans’ Court’s 

conclusion that the execution of the Beneficiary Change Request form was a 

nullity. “The fact that [John D. Newcomer, Jr.] could have changed the 

beneficiary under the power of attorney does not validate his fraudulent 

action. He should not be rewarded for attempting to commit a fraud.” 

Orphans’ Court Statement in Lieu of [a Pa.R.A.P. 1925(a)] Opinion, 8/29/14, 

at 3-4 (emphasis in original). For these reasons, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015