J

### -A24013-16 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 MONICA GAVIN AND LUCIA : IN THE SUPERIOR COURT OF CAREZANI, EXECUTRIX OF THE PENNSYLVANIA ESTATE OF JAMES GAVIN, DECEASED : 

### Appellant
v.
ELAINE LOEFFELBEIN : No. 341 EDA 2016 Appeal

### from the Judgment Entered March 11, 2016 In the Court 

### ofCommon Pleas 

### of Lehigh County Civil Division 

### at No(s): 

### 2014-C-914 BEFORE: BOWES, J., OTT, J., and SOLANO, J. MEMORANDUM BY BOWES, J.: 

### FILEDAUGUST 

### 08, 

### 2019 This 

### matter comes before this Court on remand 

### from the Pennsylvania Supreme Court, following its 

### order vacating our May 1, 2017 decision and remanding the 

### matter to us 

### for proceedings 

### consistent with its opinion. 

### See 

### Gavin v. 

### Loeffelbein, 205 A.3d 1209 (Pa. 

### 2019) 

### ("Gavin 

## II"). Upon applying its ruling to the issues raised in this appeal, wevacate the

### judgment and remand 

### for

### further proceedings 

### consistentwith this memorandum. A succinct 

### history of this case is as follows. 

### Appellant Monica Gavin 

### ("Monica") was 

### married to James Gavin 

### ("James"), who was the 

### brother of Appellee Elaine Loeffelbein ("Elaine").1 With a divorceaction pending, Monica

1 OnApril 22, 2019, counsel

### for Elaine filed a suggestion ofdeath in

### this Court indicating

### that Elaine died on

### August8, 2018, and noestate had been opened.J

### -A24013-16

and James lived separate and 

### apart within the 

### marital residence where 

### their two children (ages seventeen and 

### fourteen) also resided. 

### At the end 

### of May 2012, upon the 

### petition ofJames's divorce 

### attorney, emergency guardians of James's person and estate were appointed.2 The guardian of the person

2 The 

### emergency guardians were appointed pursuant to 20 Pa.C.S. § 5513, which provides as

### follows: Notwithstanding the provisions of section 5511 

### (relating to 

### petition and 

### hearing; independent 

### evaluation), the court, upon 

### petition and a hearing at which clear and convincing evidence is shown, may 

### appoint an 

### emergency guardian or guardians of the person or estate of a person alleged to be 

### incapacitated, when it appears 

### that the person lacks 

### capacity, is in need of a guardian and a 

### failure to make such 

### appointment will 

### result in 

### irreparable harm to the person or estate ofthe alleged incapacitated person. The provisions ofsection5511, including those relating to counsel, shall be applicabletosuch proceedings, exceptwhenthe

### court has found 

### that it is not feasible in the circumstances. An 

### emergency guardian so appointed 

### for the person or estate of an alleged incapacitated person shall 

### only have and be 

### subject to such powers, duties and 

### liabilities and serve 

### for such 

### time as the 

### court shall 

### direct in its decree. An 

### emergency order appointing an 

### emergency guardian of the person may be in 

### effect 

### for up to 72 hours. 

### If the emergency continues, then the emergency 

### order may be extended 

### for no morethan 20 days 

### from the 

### expiration of the initial emergency order. 

### After expiration of the emergency order or any extension, a full guardianship proceeding 

### must be 

### initiated pursuantto section 5511. The

### court mayalso 

### appointan 

### emergency guardian ofthe person 

### pursuant to 

### this section

### for an alleged incapacitated personwho is

### present in

### this Commonwealth but is domiciled outside of 

### this Commonwealth, regardless of 

### whether the alleged incapacitated person has 

### property in this Commonwealth. An 

### emergency order appointing an 

### emergency guardian ofthe estate shall not exceed 30 days. 

### After 30 days, a full guardianship proceeding 

### must be 

### initiated pursuant to section 5511. 

## -2J

### -A24013-16 promptly moved James into an assisted living 

### facility atthe end of May 2012. The 

### emergency guardian 

### for James's estate was given the power and 

### duty to ascertain and 

### administer all ofJames's 

### property, and to 

### identify and ascertain thewhereabouts ofall 

### property he co-owned. 

### Ultimately, on

### August 20, 2012,

a 

### permanent guardian was appointed 

### for James. In the 

### meantime, James had 

### valuable memorabilia, rare books, 

### autographs, and antiques

### that he 

### kept in boxes in the basement ofthe

### former marital residence ("FMR"). Someof 

### the boxes had been removed at James's 

### request by a 

### neighbor to a rented storage 

### facility in April 2012, but 

### other boxes remained in the FMR. Based upon James's 

### fear 

### that Monica would 

### destroy or dissipate the collection, Elaine contacted James's guardian and asked 

### that she be 

### permitted to 

### enterthe FMRto 

### retrievethe restofthe boxes. The guardian refused Elaine's 

### request, but indicated

### thatshe would seeto it. When days passed and the items remained in the FMR, Elaine contacted James's 

### attorney, who informed her 

### that James had the 

### right to remove his personal 

### things from the FMR. 

### Thereafter, Elaine and James 

### wentto the FMR and were

### admitted by

### the children. Elaine,James, and thetwo children 

### took the remaining 

### eight to ten boxesto the storage

### facility. Monica was 

### later grantedthe

### rightto 

### inventoryJames'scollection bythe 

### family court. The boxes were taken to the office of James's 

### attorney for Monica to inspect. Left alone in a room 

### with them, Monica 

### determined 

### that items 

### worth $236,000 were missing. As a 

### result, Monica filed a 

### pro se 

## -3J

### -A24013-16 complaint against Elaine, and, 

### eventually, a counseled amended 

### complaint containingcountsoftrespass,conversion, negligence,3 and 

### punitive damages. James died before the case proceeded to 

### trial, and the 

### executrixof his estate
was 

### substituted as a 

### party 

### plaintiff ("the Estate"). At

### trial,the 

### major issuewas

### whetherJames had 

### thecapacitytoconsent to Elaine's conduct. Monica and 

### the Estate 

### (collectively "Appellants") maintained 

### that the 

### appointmentof a guardian to 

### administer James's 

### estate,
even on an 

### emergency basis before a full and final 

### adjudication as to his capacity, rendered him incapable 

### of consenting. Elaine contended, and the 

### trial courtagreed, 

### thatJames retained some decision

### -making 

### authority in the absence ofan 

### adjudication of incapacity, and 

### instructed the

### juryto 

### determine whether he in 

### fact had 

### capacity onJuly 9, 2012. The 

### jury found in 

### favor of Elaine on the conversion and negligence counts 

### after the 

### trial court entered a 

### nonsuit as to trespass and 

### punitive damages. 

### Appellants filed a post

### -trial motion alleging a 

### number of bases 

### warranting a new 

### trial. The 

### trial court denied the 

### motion, and 

### Appellants 

### timely appealed, and 

### subsequently perfected appellate

### jurisdiction by

### filing a

3 The alleged negligence was composed 

### of Elaine's 

### taking the missing collectibles or allowing someone else to 

### take 

### them, as well as her 

### failure to (a) 

### "obtain lawful consent before removing the

### collectibles"fromthe FMR; (b) 

### "properlystore and safeguardthe 

### collectibles;" (c) 

### "inventoryand overseethe 

### collectibles;" (d) 

### "properly insure the 

### collectibles;" (e) 

### "prevent the collectibles from being lost or 

### stolen;" (f) 

### "return or replace the collectibles

. . . upon 

### demand." Second Amended 

### Complaint, 

### 5/29/14, at ¶ 26.

- 4 -J

### -A24013-16 praecipe 

### for the 

### entry of 

### judgment on the 

### verdict. On appeal, 

### Appellants challenged the 

### trial court's grants of nonsuits as to trespass and 

### punitive damages, as well as the 

### trial court's instructions (or lack 

### thereof) to the

### jury

as to 

### (1) James's 

### capacity to consent; (2) the 

### availability of 

### mistake of law and 

### mistake of

### fact as defenses to 

### conversion; (3) Elaine's 

### duty to exercise reasonable care overthe collectibles in her possession; and (4) 

### spoliation. This Courtdiscerned no 

### reversible

### erroronany issue. Astothequestion of James's continued 

### ability to make decisions 

### about his 

### property after the 

### appointment of 

### the emergency guardian, but before 

### the adjudication of incapacity pursuant to 20 Pa.C.S. § 5511, 

### this Court held 

### thatthe 

### temporary guardianship order had expired before July 9, 2012, and, even if it had not, the 

### order did not 

### completely strip James 

### of 

### ability to consent to Elaine's actions. 

### Gavin v. 

### Loeffelbein, 161 A.3d 340 (Pa.Super. 2017) 

### ("Gavin

## I") (vacated by

### Gavin

# II,supra). OurSupreme Court granted allowance ofappeal to address the meaning and 

### effectofthe 

### emergencyguardian

### statute, 20 Pa.C.S. § 5513. 

### That

### statute provides, in 

### relevant part: the court, upon 

### petition and a hearing at which clear and convincing evidence is shown, may 

### appoint an 

### emergency guardian or

### guardians ofthe person or estate of a person alleged to be 

### incapacitated, when it appears 

### that the person lacks capacity, is in need of a guardian and a 

### failure to make such 

### appointmentwill result in 

### irreparable harm to the person orestate ofthe alleged incapacitated person.

. . . An 

### emergency guardian so appointed 

### forthe person or estate of an alleged incapacitated person shall only have and be 

### subject to such powers, duties and 

## -5J

### -A24013-16
liabilities and serve 

### for such 

### time as 

### the court shall 

### direct in its decree. 20 Pa.C.S. § 5513. OurSupreme Court rejected this Court's holding

### that an 

### individual may continue to exercise some

### manner of 

### control over hisor her estate until he or she is 

### adjudicated incompetent following the procedures of § 5511. Rather, it held 

### that "by assigning specific duties to the guardian, the 

### orphans' court designatesthose areas of decision making to be 

### within the exclusive 

### purview of the 

### guardian." 

### Gavin 

## II, supra at 1223. Thus, 

### "James'[s] ability to consent to 

### [Elaine's] conduct should be 

### determined by inverse reference to the duties assigned 

### to"the emergency guardian. 

## Id. at 1224. As such, 

### "the 

### jury instructions regarding capacity were 

### misleading." 

### Id. The Court 

### thereforevacated ourdecisionand remanded to us

### "forproceedings 

### consistent with this Opinion." 

### Id. at 1225. 

### Accordingly, we 

### revisit the issues

### Appellants have raised on appeal: A. Did the 

### trial court's instructions to the 

### jury contain 

### substantial errors so

### that relief must be granted? 1. Did the 

### court err by charging the

### jury to 

### determine whether James

. . . consented to thetaking of 

### marital property where he had been appointed a 

### temporary guardian 

### with

### authority over all his 

### property? 2. Did the 

### court err by failing to charge the 

### jury that mistake of law and 

### mistake offact are not defensesto conversion? 3. Did the 

### court err by failing to charge the 

### jury that [Elaine] had a 

### duty of reasonable care 

### over collectibles she

### voluntarilytook control over?

- 6 -J

### -A24013-16

4. Did the 

### court err by charging the 

### jury on 

### spoliation against Appellants wherethere was no bad 

### faith and the items allegedly disposed 

### of had no 

### evidentiary value? B. Did the 

### court err by 

### granting a 

### nonsuit asto trespasswhere James

. . . could not 

### lawfully consent to 

### [Elaine] entering the [FMR] and 

### taking thecollectibles? C. Did the 

### court err by 

### granting a 

### nonsuit as to 

### punitive damages where

### Appellant[s] proved an 

### intentional 

### tort and evidencewas offered to 

### support theconclusion

### that [Elaine] acted in 

### total disregard 

### forthe rights of others? 

### Appellants' brief at 6 

### (unnecessarycapitalization 

### omitted). We conclude 

### that application of our Supreme 

### Court's holding to 

### Appellants' issue 

### (A)(1) requires us to vacate the

### judgment and remand 

### for a new 

### trial on

### Appellants' conversion claim as well as the claim

### that Elaine was 

### negligent in failing to obtain lawful consent before removing the collectibles 

### from the FMR. The 

### impactofour Supreme 

### Court'sdecision uponquestion (B) is not 

### readily ascertainable, and we 

### therefore leave its 

### resolution in the 

### first instance to the 

### trial court with the benefit of advocacy 

### from the parties. However, issues 

### (A)(2)-(4) and (C) are not affected by our Supreme Court's opinion, and we 

### affirm the 

### trial court's rulings on those matters.4

4 

### Although a new 

### trial is 

### warranted based upon 

### Appellant's 

### first question, we review the remaining issues both to define the scope 

### ofthe new

### trial, and to address issues 

### likelyto re-arise upon 

### retrial. See,

### e.g., 

### Maderv. 

### Duquesne 

### Light Co., 199 A.3d 1258, 1270 n.2 (Pa.Super. 

### 2018) 

### ("[W]here the only 

### trial errors disclosed in the record deal 

### with specific and 

### discrete issues, the 

### grant of a new 

### trial should be 

### limited to those issues.") 

### (internal quotation 

## -7J

### -A24013-16 Appellants' initial questions concern 

### allegations of 

### error in the 

### trial court's instructions tothe

### jury. Our review ofthese claims is governed bythe following standard. Error in a charge is 

### sufficient ground 

### for a new 

### trial if the charge as a whole is inadequate or not clear or has a 

### tendency to mislead or confuse 

### rather than 

### clarify a 

### material issue. Error will be found where the

### jury was 

### probably misled by 

### what the 

### trial judge charged or where 

### there was an omission in the charge. A charge will be found adequate unless the issues are not made clearto the

### jury or the

### jury was palpably misled by

### what thetrial judge said or unless 

### there is an omission in the charge which amounts to a 

### fundamental error. In reviewing a 

### trial court's chargeto the

### jury, we 

### must look to the charge in its 

### entirety. 

### Tincher v. 

### Omega 

### Flex, 

### Inc., 180 A.3d 386, 

### 397-98 (Pa.Super. 2018) (cleaned up). 

### Appellants' 

### first argument is premised upon the position 

### that James, being incapacitated on July 9, 2012, was incapable of giving consent to Elaine's 

### entry into 

### the marital home and removal of his personal 

### memorabilia collectionfrom 

### that residence. Based upon 

### this premise, 

### they claim 

### that the 

### trial court erroneously instructed the

### jury that it could 

### determine whether James had consented to Elaine'sactions on July 9, 2012. 

### Appellant's brief at 16. The record indicates 

### that the 

### trial courtoutlined various sectionsofthe guardianship law to the 

### jury, including the 

### definition of an incapacitated

marks and 

### citation 

### omitted). We 

### additionally note 

### that, as the High Court vacated our prior opinion, we include herein anew our full analysis 

### from 

### that opinion of the issues unaffected by

### the Supreme Court's rulings. 

## -8J

### -A24013-16
person and excerpts ofthe 

### statuteoutlining the procedure

### for appointment of
an 

### emergency guardian. 

### See N.T. 

### Trial, 

### 6/12/15, at 

### 964-67. The 

### trial court also read 

### portions of the May 24, 2012 

### order appointing an 

### emergency guardian 

### for James and then summarized 

### what occurred during the 

### guardianship proceeding. The 

### court

### thereafteradvised the

### jury: With respect to 

### the emergency guardian, the emergency guardian of the person was 

### limited to 

### placement, and to make medical decisions. And theemergency guardian ofthe Estate was 

### for the powers 

### that I 

### mentioned, in 

### terms of 

## - including 

### other things 

## - assembling [James's] personal 

### property. The power to the emergency guardian ofthe person is not exclusive to the 

### guardian; 

### that is to say, 

### that [James] was not precluded 

### from expressing hiswishes, and making somedecisions regarding his personal 

### property. 

### Id. at 969. This chargefailsto 

### conform to

### the law as stated by our Supreme Court, and 

### thus, amounts to 

### fundamental error. The May 24, 2012 order gave to James's 

### emergency guardian ofthe estate the power and 

### duty 

### "to ascertain, assemble and 

### administer all 

### of the 

### property owned by James" as well as to 

### identify and locate 

### "any and 

### all" property James co-owned. Order, 

### 5/24/12, at 2. Based upon the High Court's decision in 

### this case, those powers were exclusiveto his 

### emergencyguardian pursuant to § 5513, and James no longer had the 

### authority to make decisions regarding the disposition of any of this 

### property. As

### this

### errorgoesto the heart of

### Appellants' claim

### that Elaine lacked 

### authority to remove James's 

### property from the residence, Appellants are 

## -9J

### -A24013-16
entitled to a new 

### trial as to 

### their counts 

### for conversion and 

### negligent failure to obtain valid consent to remove and refuse to 

### return the collectibles.5 We 

### next consider the 

### other issue affected by our Supreme Court's 

### construction of the 

### emergency guardian 

### statute: Appellants' contention 

### that the 

### trial court improperly granted a 

### nonsuit againstthem asto 

### their trespass
cause of action. The 

### following principles govern our consideration of this claim. A 

### nonsuit is 

### proper only if the

### jury, viewing the evidence and all reasonable inferences arising 

### from it in the 

### light most favorable to the 

### plaintiffs, could not reasonably conclude

### thatthe elements of the cause 

### of action had been established. 

### Furthermore, all 

### conflicts inthe evidence

### must be resolved in 

### the 

### plaintiff[s'] favor. In reviewing the evidence presented we 

### must keep in mind

### that a

### jury may not be 

### permitted to reach a 

### verdict based on mere

### conjecture orspeculation. We will reverse only if the 

### trial court abused its 

### discretion or made an 

### error of law. 

### Barnes v.

### Alcoa, 

### Inc., 145 A.3d 730, 735 (Pa.Super. 

### 2016). In Pennsylvania, a person is 

### subject to 

### liability for trespass on land in accordance

### withthedictates ofRestatement (Second)ofTorts § 158. 

### Liberty Place 

### Retail Assocs., L.P. v. 

### Israelite Sch. 

## of Universal Practical Knowledge, 102 A.3d 501, 506 (Pa.Super. 

### 2014).

5James'scapacity, or lack

### thereof,to consent to removal ofthe 

### propertyfrom the FMR had no bearing on

### Appellants' claims

### that Elaine was 

### negligent in her handling of the 

### property during the 

### time 

### that it was in her possession. As such,

### Appellants are not 

### entitled to a new 

### trial as to those 

### contentions. See, 

### e.g., 

### Mader v. 

### Duquesne 

### Light Co., 199 A.3d 1258, 1270 n.2 (Pa.Super. 2018) 

### ("[W]here the only

### trial errors disclosed inthe record deal 

### with specific and 

### discrete issues, the

### grant ofa new

### trial should be 

### limited tothose issues.") 

### (internal quotation marks and 

### citation 

### omitted).

- 10 -J

### -A24013-16
One is 

### subject to 

### liability to 

### another for trespass, irrespective of 

### whether he 

### thereby causes harm to any legally protected 

### interestofthe other, if he 

### intentionally (a) enters land in the possession of the 

### other, or causes a 

### thing or a 

### third person to do so, or (b) remains on the land, or (c) fails to remove 

### from the land a 

### thing which he is under a 

### duty to remove. Restatement (Second) of Torts § 158. 

### "Conduct whichwould 

### otherwise 

### constitute a trespass is not a trespass if it is 

### privileged." Restatement (Second) 

### of Torts § 158, 

### Comment e. 

### Furthermore, consent is a defense to all 

### tort claims. 

### Id. at § 

### 892A(1). For example, 

### there is no 

### liability for trespass by illegal 

### entry "where such 

### entry
was by permission ofthe 

### owner." 

### Gedekoh v. 

### Peoples Nat. Gas Co., 133 A.2d 283, 284 

### (1957) (citing Restatement of

### Torts § 158). "To be 

### effective, consent 

### must be (a) by one who has 

### the capacity to consent or by a person empowered to consent 

### for him, and (b) to the 

### particular conduct, or to 

### substantiallythe same 

### conduct." Restatement (Second) 

### ofTorts § 

### 892A(2). However, even if

### the consenting person lacked 

### capacity to consent, because the person 

### "is a child or one

### of deficient mental capacity,theconsent may still be 

### effective if he is capable of 

### appreciating the nature, 

### extent and probable consequencesofthe conduct consentedto, 

### although the consentof a 

### parent, guardian or

### other person responsible is not obtained or is 

### expressly 

### refused." 

### Id. at 

### Comment b.J

### -A24013-16

To establish the circumstances 

### surrounding Elaine's July 9, 2012 

### entry into the Jordan Road 

### property, Monica presented as witnesses her 

### children, Edric and 

### Aubrey, and Elaine. Elaine reported 

### thatJames asked her to come 

### with him to his home. When Elaine 

### arrived at the residence, she followed James inside. Edric 

### testified 

### that, when Elaine and James came to the door, he and his

### sistergrantedthem entry. Aubreyconfirmed

### thatJames and Elaine 

### arrived 

### togetherto 

### enter the residence. Monica suggests

### thatJames could not

### authorize

### entry into his own home because he had been 

### adjudicated an incapacitated person on May 24, 2012. Our Supreme Court held 

### that the 

### appointment of an 

### emergency guardian divestedJames of the

### authorityto exercise powers

### that had been given to the guardian. 

### See 

### Gavin

# II, supra at 1224. 

### ("James'[s] ability to consent to 

### [Elaine's] conduct should be 

### determined by inverse reference to the duties assigned 

### to"the emergency 

### guardian). However, the High 

### Court also noted 

### that James's 

### ability to consent to Elaine's 

### entry into 

### the FMR 

### "may not 

### implicatethe dutiesassigned to his guardian ofthe

### estate." 

### Id. at 1225 n.22. 

### Furthermore, the parties have not briefed 

### whetherthe consent ofthe teenage residents of the FMR 

### validated Elaine's 

### entry on 

### the land. 

### Therefore, rather than determine in 

### the 

### first instance 

### whether 

### that power was encompassed 

### within the powers granted to James's 

### guardians, 

### without the benefit of advocacy from the parties on the issue, we leave 

### for the 

### trial court to

- 12 -J

### -A24013-16
determine upon remand 

### whether the trespass claim should be 

### reinstated 

### for presentation to the

### jury upon 

### retrial of 

### Plaintiffs'conversion claim. We now resolve the issues not impacted by our Supreme Court's decision in 

### this case, 

### starting with the remaining challenges to the 

### jury instructions,which we review 

### pursuantto thestandard of review noted supra. 

### Appellants' next such 

### complaint is 

### that the 

### trial court's charge as to the elements of conversion was 

### incorrect. Conversion is 

### "the deprivation of another's right of 

### property in, or use or possession of, 

### chattel, or 

### other interference 

### therewith, without the owner's consent and 

### without lawful 

### justification." PTSI, 

### Inc. v. 

### Haley, 71 A.3d 304, 314 (Pa.Super. 

### 2013) 

### (citations 

### omitted). The 

### trial courttold the

### jury the

### following: Now 

### I'm going to define conversion. Conversion 

### essentially requires 

### proof 

### that the Defendant 

### interfered 

### without lawful 

### justification,with a 

### Plaintiff's 

### rightof 

### property in a 

### particularasset. Showing 

### that the Defendant acted 

### without lawful

### justification is an 

### element of

### the prima facie case of conversion on which the 

### Plaintiff bears the burden of proof. Lawful

### justification is not an 

### affirmative defense. Where one 

### lawfully comes into possession of a 

### chattel, a conversion occurs 

### under the Pennsylvania Law, if a demand 

### for the chattel is made by the 

### rightful owner and the 

### other party refuses to 

### deliver. N.T. 

### Trial, 

### 6/12/15, at 971. 

### Appellants' position as to the conversion charge is 

### that the 

### trial court "erred byfailing to charge the

### jurythat mistake of law and 

### mistake of

### fact are not defenses to 

### conversion." Appellants' briefat 26. In 

### Hatwoodv. 

### Hosp.

- 13 -J

### -A24013-16 

## ofthe Univ. 

## of Pennsylvania, 55 A.3d 1229, 1235 (Pa.Super. 

### 2012), we 

### articulated the settled principle 

### that "only when the charge as a whole is inadequate or not clear or has a 

### tendency to mislead or confuse 

### rather than 

### clarify a 

### material issue 

### that error in a charge will be found to be a 

### sufficient basis 

### forthe award of a new 

### trial." We also repeated the ensconced 

### precept 

### that "a 

### trial judge has wide 

### latitude in his or her choice 

### of language when charging a

### jury, provided always 

### thatthe 

### court

### fully and 

### adequately conveys the applicable 

### law."

### Id. Simply put,the

### trial courtwas not required to 

### instruct the

### jury in accordance 

### withAppellants' proposed 

### point

### for chargeand, as long
asthe proper legal concepts were conveyed to the

### jury, a new 

### trial will not be awarded. Herein, the 

### trial court set 

### forth the elements of a cause of action in conversion, including the fact 

### that conversion occurs when 

### property is taken 

### without legal

### justification. The 

### trial court's repeated 

### admonition

### that Elaine's 

### taking of the 

### property had to be 

### legally

### justified adequately expressed the concept 

### that "mistake of law" and 

### "mistake of 

### fact" are not defenses to conversion. The conversion charge, as a whole, was 

### neither unclear nor inadequate, and it did not have a 

### tendency to mislead or confuse the

### jury regarding the applicable law. Hence, 

### the 

### trial court may elect to charge the 

### jury thesame way in the new 

### trial. Appellants next maintain 

### that the 

### court erred when it did not 

### "charge the

### jury that defendant had a 

### duty of reasonable care 

### over collectibles she

- 14 -J

### -A24013-16 

### voluntarily took control 

### over." Appellants' brief at 30 (emphasis 

### omitted). The 

### trial court gave thefollowing 

### instruction as to negligence: Now 

### I'm going to define negligence 

### for you. In 

### this case, you 

### must decide 

### whether Elaine Loeffelbein was 

### negligent. A person 

### must act in a reasonably careful manner to avoid harming others. The care required varies according to the circumstances, and the degreeof danger at a 

### particulartime. You 

### must decide how a reasonably careful person would act underthe circumstances established bytheevidence in this ease. A person who does 

### something reasonably

## - I'm sorry. A person who does 

### something a reasonably careful person would not do under the circumstances, is 

### negligent. A person also can be 

### negligent by 

### failing to act. A person who failsto do 

### something a reasonably careful person would do under the circumstances is negligent. N.T. 

### Trial, 

### 6/12/15, at 

### 970-71. Appellants argue

### thatthe court should have 

### specifically mentioned 

### that Elaine had a 

### duty to reasonably care 

### for the collection. This 

### entire case was solely about items 

### purportedly missing 

### from the recovered boxes 

### containing the collection. In 

### light of the facts and 

### Appellants' position at 

### trial, the

### jury certainly was aware 

### that the 

### averments relating to Elaine's negligence concerned her actions 

### that allegedly resulted in lost 

### artifacts of memorabilia. We decline to award a new

### trial based upon

### the 

### trial court'sfailureto include the wording 

### that Elaine's 

### duty of care related to the 

### "collectibles she 

### voluntarilytook control 

### over." Appellants'final claim of

### error as tothe

### jury instructions is

### thatthe 

### court improperly chargedthe

### jury asto 

### spoliation. The

### following factsare 

### pertinent. Monica claimed 

### that she 

### inventoried about 

### eighty percent of the boxed

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### -A24013-16
collection from May 2012 

### through July 9, 2012. As noted, Monica 

### performed

a second 

### inventory alone in 

### Attorney Barr's office in May 2013. Monica averred 

### that her second 

### inventory revealed 

### that 296 

### articles were gone, and 

### that theywere

### worth $236,000. In 

### support of her position, Monica presented

a 

### spreadsheet 

### inventory purportedly created 

### prior to July 9, 2012, and pictures of some 

### of the memorabilia in question. Monica professed 

### that the 

### computer

### that she used to createthe 

### inventory had crashed in thefall of2013 and 

### that the camera cards 

### that she used to 

### take pictures of the collectibles
were damaged during a flood in her home. Monica 

### admitted 

### that she discarded 

### the computer and camera cards. During 

### discovery, Elaine requested the 

### computer and camera cards to ascertain if the spreadsheet 

### inventory was 

### actually prepared and if 

### the picturesweretaken beforeJuly2012, instead of in May2013, atthe

### attorney's office. Elaine presented an 

### expert witness who reported 

### that, if Monica had not discarded the laptop and camera cards and had produced 

### them 

### for examination, information could have been recovered 

### from the 

### computer and
camera cards regarding when the 

### inventory spreadsheetwas created and the pictures were taken. Elaine noted 

### that Monica knew 

### that the 

### computer and camera cards could be 

### pertinent in 

### this 

### matter by May 2013, when she 

### allegedly discovered 

### that articles were missing 

### from the collection, and 

### thereafter destroyed the laptop and camera cards in the fall of 2013.

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### -A24013-16

As we observed in 

### Rodriguez v. 

### Kravco Simon Co., 111 A.3d 1191 (Pa.Super. 

### 2015), penalties

### for spoliation of evidence have been applied since the early 17th 

### century. The 

### spoliation doctrine is applicable to any case 

### "where 

### 'relevant evidence' has been lost or 

### destroyed." 

### Mount Olivet Tabernacle Church v. 

### Edwin L. 

### Wiegand Div., 781 A.2d 1263, 1269 (Pa.Super. 

### 2001), 

### aff'd sub nom. 

### Mount Olivet Tabernacle Church v. 

### Edwin WiegandDiv., 811 A.2d 565 (Pa. 

### 2002). A 

### party'sdestruction or loss of 

### proof

### that is 

### pertinentto a 

### lawsuit can 

### result in a

### variety ofsanctions. 

### Parr

v. 

### Ford

### MotorCo., 109 A.3d 682 (Pa.Super. 

### 2014). In reviewing the 

### propriety of a sanction 

### for spoliation, "we must determine 

### whether the 

### court abused its 

### discretion." 

### Id. at 701 

### (citation omitted). The 

### trial courtweighs 

### threefactors in deciding upon an 

### appropriate penalty for spoliation, 

### "(1) the degree of 

### fault of the 

### party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing 

### party; and (3) 

### whether there is a lesser sanction 

### that will avoid 

### substantial unfairness to the opposing 

### party and, where the offending 

### party is 

### seriously at

### fault, will serveto 

### deter such 

### conduct by others in the 

### future." 

### Id. at 702 

### (citation 

### omitted). For purposes of


### evaluation of the

### first prong, 

### "the faultof the 

### party who altered or destroyed the 

### evidence," requires consideration of two components, the 

### extent of 

### the offending party's 

### duty or 

### responsibilityto preservethe 

### relevant evidence, and the presence or absence of bad 

### faith. The 

### duty prong, in 

### turn, is established where: (1)the 

### plaintiff knows

### thatlitigation againstthedefendants

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### -A24013-16

is pending or 

### likely; and (2) it is foreseeable 

### that discarding the evidencewould be 

### prejudicial to the defendants. 

### Id. (cleaned up). One sanction 

### that a 

### court may choose to impose when evidence is lost
or destroyed is to 

### instruct the 

### jury that it may infer 

### "that the destroyed evidencewould have been 

### unfavorable to the positionofthe offending 

### party." 

### Rodriguez, supra at 1196. The 

### rationale 

### for this spoliation inference is 

### "nothing more than the common sense 

### observation 

### that a 

### party who has notice 

### that evidence is 

### relevant to 

### litigation and who proceeds to 

### destroy evidence is more 

### likelyto have been 

### threatened by"the 

### proof in question. 

### Id. The 

### crux of this lawsuit involved Monica's accusation 

### that items of 

### memorabilia were missing

### afterthe collection wastaken onJuly9, 2012. She represented 

### that she 

### inventoried 

### eighty percent of the collection before July 9, 2012, and presented 

### proof of her 

### inventory

### that consisted 

### of spreadsheets created in a 

### computer and pictures contained in camera cards. An 

### examination of the 

### computer and camera card by Elaine's 

### expert witness would have led to 

### verification as to when the pictures were taken and the spreadsheetswerecreated. 

### After May2013, whenshe 

### purportedlydiscovered the missing items, Monica 

### intentionally destroyed the 

### computer and camera cards, which created evidence used in 

### this lawsuitand which could have been examined by Elaine's 

### expert. Based upon these facts,

### the

### trial court allowed the

### jury, in its 

### discretion, to decide 

### whether Monica 

### credibly explained 

### why the 

### computer and camera

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### -A24013-16
card were unavailable 

### for Elaine's inspection. To 

### wit, the 

### trial court disseminated the Standard Jury 

### Instruction for Spoliation of Evidence, 

### Instruction 5.60: 

### If a 

### party disposes of a piece of evidence before the 

### other party had an

### opportunityto inspect it, and the 

### partywho disposed oftheevidenceshould have recognized theevidencewas 

### relevant to an issue in 

### this lawsuit, then you 

### may

### find that this evidence would have been 

### unfavorable to 

### them, 

### unless 

### they 

### satisfactorily explain

### whytheydisposed

### of

### this evidence. N.T. 

### Trial, 

### 6/12/15, at 

### 963-64 (emphases added). On appeal,

### Appellants posit 

### thatthere was no bad 

### faith by Monica since the 

### computer crashed and the camera cards were damaged by 

### water. However, 

### whether or not Monica acted in bad 

### faith was 

### wholly dependenton 

### whether her 

### testimony about how the objects came to be 

### destroyed was 

### worthy ofbelief. 

### Appellate courtsdo notdecide

### whethersomeone has

### testified 

### truthfully, and we 

### cannotfind 

### that Monica operated in "good 

### faith" unless we 

### credit her 

### explanation of 

### why she disposed of the evidence. The 

### jury was given the 

### task of deciding if Monica was being 

### truthful about why she destroyed the

### computer and camera card. There was no 

### error in 

### this respect. 

### Appellants also suggest 

### that the spoliation charge was not 

### warranted because the 

### computer and camera cards had 

### "no 

### evidentiary value." Appellants' briefat 34. Once again, a 

### finding 

### that the 

### computer and camera cards had 

### "no 

### evidentiary value" requires 

### that we 

### credit 

### that the 

### computer crashed and 

### that the cards were 

### water-damaged. Elaine's 

### expert witness reported 

### that the 

### computer would have revealed 

### whether the spreadsheets

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### -A24013-16

were created before July 2012 

### rather than 

### after May 2013, when Monica had 

### unfettered access to the collection alone in a room. In 

### light of the facts in 

### question, the 

### important nature of the evidence in 

### question, and Monica's actions, we 

### cannot find 

### that the 

### trial court abused its 

### discretion in giving the spoliation charge, and may 

### properlyto do so again upon 

### retrial. Finally, 

### Appellants complain 

### that the 

### trial court improperly granted a 

### nonsuit as to 

### their claim 

### for punitive damages. As noted above, we review the 

### trial court's grant of a 

### nonsuit

### for an 

### error of law or abuse 

### of discretion. 

### Barnes, 

### supra at 735. A 

### nonsuit is 

### proper if the

### jury could not reasonably conclude

### thatthe evidence,viewed inthe 

### light mostfavorable to the 

### plaintiffs, establishesthe elements of a cause 

### of action. 

### Id. Punitive damages may be awarded

### for conduct

### that is

### outrageous, because ofthe 

### defendant's evil 

### motive or his reckless 

### indifference to the rights of others. As the name suggests, 

### punitive damages are penal in 

### nature and are proper only in cases where the 

### defendant's actions are so 

### outrageous as to 

### demonstrate willful, wanton or reckless conduct. The purpose of 

### punitive damages is to punish a 

### tortfeasorforoutrageous conduct and to 

### deter him or others like him 

### from similar conduct. 

### Additionally, this Court has stressed 

### that, when assessing the 

### propriety of the 

### imposition of 

### punitive damages, 

### the state of mind 

### ofthe actor is

### vital. The act, orthe 

### failure to act, 

### must be 

### intentional, reckless or malicious. 

### Hutchison ex rel. 

### Hutchison v. 

### Luddy, 870 A.2d 766, 

### 770-71 (Pa. 2005) (cleaned up). 

### Appellants' position 

### that Elaine's 

### conduct warranted the imposition of 

### punitive damages is 

### untenable. Appellants offered no evidence to suggest 

### that Elaine operated 

### with evil 

### motive or

### with reckless 

### indifference to 

### anyone's

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### -A24013-16 rights. Elaine's actions were not so 

### outrageous as to 

### demonstrate 

### willful, wanton, or reckless conduct. Elaine acted upon legal advice

### thatJames could 

### enter his own homeand 

### retrieve his own personal 

### property. ThatourSupreme Court 

### ultimately reversed this 

### Court's 

### agreement with 

### that legal advice does not elevate Elaine's 

### conduct into the realm of the outrageous. Punitive damages 

### clearly were not 

### warranted herein, and the 

### trial court correctly granted nonsuit asto

### thatclaim. 

### See

### Phillipsv. 

### CricketLighters, 883 A.2d 439, 447 (Pa. 2005) (holding 

### manufacturer 

### that failed to place child 

### safety features on its 

### lighters to avoid harm to children playing 

### with them did not engage in conduct

### that"was so 

### outrageous as to 

### support an award of

### punitive damages"); 

### Valentino v. 

### Philadelphia Triathlon, LLC, 150 A.3d 

### 483,

### 488- 89 (Pa.Super. 

### 2016), 

### affirmed byequallydivided court, A.3d , 2019 WL 

### 2587779 (Pa. June 18, 

### 2019) (ruling 

### triathlon organizer was not 

### subject to 

### liability for punitive damages in connection 

### with death of 

### triathlon participantwhere allegations sounded in negligence, even 

### though averments included 

### thatdefendantwas

### "inattentivetothe needsofthe 

### contestants,failed to inspector

### maintain theevent course,failed towarn oforremovedangerous conditions, failed to 

### properly plan ororganizetheevent, failed to 

### followsafety standards, and failed to 

### properly train and supervise its 

### employees"). Furthermore, nothing inour SupremeCourt's decision 

### warrantstherelitigation ofthe issue of 

### punitive damages upon remand 

### for a new 

### trial.

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### -A24013-16
In sum, our Supreme 

### Court's decision requires 

### thatverdicts in 

### favor of Elaine on

### theclaims

### ofconversion and 

### negligentfailureto 

### obtainvalidconsent to remove and refuse to 

### return the collectibles be vacated and the case remanded 

### for a new 

### trial on those claims. We also vacate the nonsuit on 

### Appellants'trespass claim and leavethe question oftheeffect ofourSupreme Court's decision on 

### that count 

### for the 

### trial court to 

### determine in the 

### first instance. However, the nonsuit on the claim

### for punitive damages, as well as the defense 

### verdict as to negligence in the handling ofthe collection during the 

### time 

### that it was in Elaine's possession, are 

### affirmed and shall not be 

### at issue in the new 

### trial. Further, the 

### trial court may 

### instruct the 

### jury on negligence, 

### conversion, and 

### spoliation as it did in the 

### firsttrial. Judgmentvacated. Case remanded 

### for proceedings 

### consistentwith this memorandum. Jurisdiction relinquished. Judge Solano did not 

### participate in the consideration or decision of

### this
case. 

### Judgment Entered.

seph D. 

### Seletyn, Prothonotary

Date: 

### 8/8/19

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