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decided*fn*: March 15, 1989.


Appeal from the Order of the Superior Court entered June 1, 1987, at No.02632, Philadelphia, 1986, affirming an Order of the Court of Common Pleas of Delaware County entered September 10, 1986, at No. 82-15792. 364 Pa. Super 490, Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Mcdermott

[ 521 Pa. Page 495]

Patricia Weir Gasper, guardian of the person and present guardian of the estate of her late father, Walter Paul Weir, appeals from an order of the Superior Court, 364 Pa. Super. 490, 528 A.2d 616, which affirmed an order of the Court of Common Pleas of Delaware County. The Court of Common Pleas dismissed her petition to set aside two inter vivos transfers of real estate by and from her father to respondent, Aventino Ciao, his son-in-law. The factual history of the case is set out below.

In 1964, Mary Weir, the daughter of Walter Paul Weir and his wife Isabella, married Aventino Ciao. After their marriage the Ciaos made their home in the Delaware County residence of the Weirs. This arrangement lasted until Mary's death in 1975.

During their vacations and on weekends the Weirs and the Ciaos shared a house in Wildwood, New Jersey. Mary and her sister, Patricia Weir Gasper, appellant here, owned one-half interests in the Wildwood property, having inherited the house from their paternal grandfather. The Ciaos contributed to the upkeep of the vacation house. They also provided a substantial portion of the furnishings of the Delaware County residence and participated in paying the costs of its maintenance and operating expenses.

Upon the death of Mary Weir Ciao in 1975, Aventino Ciao inherited her interest in the Wildwood property. One month after Mary's death, Aventino Ciao and Patricia Weir Gasper transferred their interests in the property to Walter Paul Weir and his wife. The transfer of the property was effected at the insistence of Patricia Weir Gasper, without consideration, when she and her husband drove Mr. Ciao to a notary public's office on an evening within a few weeks of Mary Weir Ciao's death and he and Mrs. Gasper conveyed their interests to her parents.

Following Mary's death, Aventino Ciao continued to make his home with the Weirs. Mr. Ciao continued to live with the Weirs through the death of Isabella Weir in 1976, and into 1977. At that time, Patricia Weir Gasper insisted that

[ 521 Pa. Page 496]

    he move out and Mr. Ciao complied. On his departure, Mr. Ciao left the furnishings and effects which belonged to him and for which he neither asked nor received reimbursement. Patricia Weir Gasper and her husband then moved into her father's home.

In the years between 1977 and 1981, Aventino Ciao and his father-in-law continued to meet at the latter's call. Mr. Ciao testified and the trial court found that the relationship between the two was like that between a father and son. Ciao testified that during these meetings the two visited their wives' graves, the Fraternal Order of Police (Mr. Weir was a retired Philadelphia Policeman), and the Holmes Garage, which they used as a meeting place in the neighborhood.

In the fall of 1981, Walter Paul Weir asked Mr. Ciao to take him to a lawyer, so that he might set his affairs in order. At the time he expressed a desire to reconvey the Wildwood property to Mr. Ciao since he was of the opinion that the latter had been taken advantage of by Mrs. Gasper when he transferred his interest in the property to the Weirs after Mary's death. He also expressed a desire to transfer the Delaware County home to Mr. Ciao since Ciao had no house of his own but was living in an apartment. At that time Patricia Weir Gasper owned a property in the neighborhood.

Mr. Ciao took Mr. Weir to consult with Neil Leibman, Esquire. Ciao had sought Liebman's counsel himself in 1976, when he was having second thoughts after conveying his interest in the Wildwood property to the Weirs. Liebman advised Ciao at that time that an attempt to set aside the transfer would likely prove fruitless and Ciao desisted.

The initial meeting took place on a Sunday morning in late summer or early fall of 1981, in Liebman's office out of Ciao's presence. Liebman testified at trial that he interviewed Weir and determined that he was oriented in time, place and person. Liebman found Weir's memory intact, that he was aware of his estate, and that he freely expressed a desire to make the transfers at issue and the

[ 521 Pa. Page 497]

    reasons moving him. Weir also requested that Liebman draw up his will. He requested that privacy be maintained over the transactions since he was concerned that if his daughter learned of them she would throw him out of the house.

Liebman drew up two deeds and a will according to Weir's instructions. The deeds immediately transferred ownership of the Wildwood property to Ciao in fee, and a joint tenancy with right of survivorship in the Delaware County home. Weir retained a joint tenancy and control of the home in which he lived and ownership and control over his other assets which included cash, bank accounts and an automobile. With the exception of the automobile, which he left to a mechanic at the Holmes Garage, the will left these assets to Mr. Ciao.

In the spring of 1982, Mrs. Gasper discovered the transfers. Walter Weir Jr., the son of Walter Paul Weir, Sr., petitioned the Court of Common Pleas of Delaware County to have his father declared incompetent. On July 12, 1982, the court granted the petition and appointed Mrs. Gasper the guardian of her father's person and estate. The court relied on the report of an appointed psychiatrist, Leo Freeman M.D., who had examined Mr. Weir on June 5, 1982, and found that he was suffering from Alzheimer's disease, which disease is characterized by progressive organic brain deterioration. Mrs. Gasper then brought this action to set aside the two conveyances here at issue. She alleged, inter alia, that her father was mentally incompetent at the time of the transfers, and that Mr. Ciao had overreached and taken advantage of a confidential relationship which he enjoyed with Mr. Weir. In a decree nisi, the trial court denied her petition.

In post trial motions Mrs. Gasper alleged fifty-one errors in the court's sixty findings of fact, claiming basically that they were unsupported by the evidence. She also alleged five errors in the court's six conclusions of law, claiming that they were not supported by the law.

[ 521 Pa. Page 498]

Mr. Weir died on November 18, 1984. In December of 1984, counsel to Mr. Weir's estate discovered and brought to Mrs. Gasper's attention a notarized statement which was found in the office of Richard Cryer, Mr. Weir's insurance agent. It was dated August 27, 1981, and stated: "Under no circumstances is name to be changed from Walter Weir without his consent." In an affidavit a secretary in the agency, Alvera Crocetto, stated that Mr. Weir appeared at the agency on that date and dictated the statement to her and that he asked that it be kept in his file. The affiant quoted Mr. Weir as having stated that he thought someone was trying to take his property away from him and he did not want the name on his home owner's insurance policy changed. She stated further that Mr. Weir signed the written statement, which was put in his file and which was notarized by Richard Cryer on September 18, 1981, not the date of its execution by Mr. Weir.

Mrs. Gasper submitted a notarized copy of the statement and the affidavit in a supplementary brief and at a hearing on her post-trial motions filed with the trial court on June 3, 1985. In her supplementary brief she argued that this after-discovered evidence justified an award of a new trial. However, it must be noted that Mrs. Gasper did not request permission to amend or to supplement her post trial motions to include a request that the evidence be considered.

The trial court on September 10, 1986, dismissed Mrs. Gasper's post-trial motions and entered a final decree. In the opinion accompanying the final decree the chancellor addressed each of Mrs. Gasper's claims of factual error and found them either meritless or the error de minimus. The court further found that Mrs. Gasper's attributions of error to its conclusions of law were waived for failure to address them with specificity in her ...

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