IN RE: ESTATE OF WILLIAM O. SMALING A/K/A WILLIAM SMALING, DECEASED APPEAL OF: NORINE C. SMALING
Appeal from the Decree November 18, 2011 In the Court of Common Pleas of Monroe County Orphans' Court at No(s): 63 OC 2010
BEFORE: STEVENS, P.J. [*] , FORD ELLIOTT, P.J.E., BOWES, J., GANTMAN, J., PANELLA, J., SHOGAN, J., LAZARUS, J., MUNDY, J., and OTT, J.
Norine C. Smaling ("Norine") appeals from the decree entered in the Court of Common Pleas of Monroe County, directing that a will dated April 11, 2005 be probated as the Last Will and Testament of William O. Smaling, a/k/a William Smaling ("Decedent"). Upon a careful review of the record in this matter, we conclude that the Orphans' Court erred in finding that Decedent lacked testamentary capacity on the date he executed his 2008 will. However, because we find no error of law or abuse of discretion in the court's finding of undue influence, we affirm the court's decree.
Decedent died on December 31, 2009, a resident of Chestnuthill Township, Monroe County, survived by his second wife of approximately twelve years, Norine, as well as two adult sons, William O. Smaling, Jr. ("William") and Wayne Smaling ("Wayne"). On January 22, 2010, a document dated April 11, 2005 ("2005 will") was admitted to probate by the Monroe County Register of Wills as the Decedent's Last Will and Testament. Letters Testamentary were granted to William, the executor named therein. Under the terms of the 2005 will, Decedent gave a specific bequest of $35, 000 to Norine and left the residue of his estate to his sons in equal shares.
On March 3, 2010, Norine filed a petition seeking to probate an after-discovered will dated October 29, 2008 ("2008 will"), in which Decedent left his entire estate to Norine and named her as executrix. The 2008 will also names Norine's son (Decedent's stepson) as contingent beneficiary and alternate executor. On April 9, 2010, the Register of Wills certified the record to the Orphans' Court Division of the Court of Common Pleas of Monroe County for adjudication. The Orphans' Court issued a citation directed to William, the proponent of the probated 2005 will, to show cause why the 2008 will should not be admitted to probate.
On April 29, 2010, William filed a response to Norine's petition in which he asserted that the 2008 will was the product of undue influence practiced upon Decedent by Norine and that Decedent lacked testamentary capacity at the time of the will's execution. Norine filed a motion for summary judgment, which was denied by order dated July 5, 2011. On October 27, 2011, the Orphans' Court held a hearing at which William, Wayne and Norine testified, as well as Decedent's former brother-in-law, Frank Papson. Deposition testimony of Maggi Khalil, Esquire, the scrivener of the will, William Fort, a witness to the execution of the 2008 will, and Dr. K.R. Wignarajan, Decedent's treating physician, were also entered into evidence.
On November 18, 2011, the Orphans' Court issued an opinion and decree denying Norine's petition and directing that the 2005 will be probated as Decedent's Last Will and Testament. The court found that Norine had exercised undue influence upon Decedent and that Decedent did not possess the requisite testamentary capacity at the time he executed his 2008 will.
Norine filed a timely notice of appeal to this Court on December 14, 2011 and a court-ordered statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on January 4, 2012. The Orphans' Court filed a Rule 1925(a) statement on January 23, 2012, in which it did not specifically address the issues raised by Norine in her Rule 1925(b) statement, but rather noted that the original judge assigned to the case, the Honorable Linda Wallach Miller, had retired, and submitted Judge Miller's November 18, 2011 opinion in support of affirmance. On appeal, Norine raised, inter alia, several claims related to the weight of the evidence. After oral argument, this Court issued an opinion, since withdrawn, in which we concluded that Norine had waived her appellate weight claims because she failed to preserve them by filing exceptions pursuant to Pa.O.C.R. 7.1.
On July 20, 2012, Norine filed for reargument pursuant to Pa.R.A.P. 2541. In her petition for reargument, Norine claimed that the panel erred by interpreting Rule 7.1 to require the filing of exceptions where a weight-of-the-evidence claim is raised. She also asserted that, regardless of the panel's interpretation of Rule 7.1, her weight claims were preserved by virtue of their inclusion in her Rule 1925(b) statement. Finally, she alleged that the panel erred by finding all of her issues waived because there were properly preserved, non-weight-related claims that could and should have been addressed on their merits.
By order dated September 7, 2012, this Court granted en banc reargument, withdrew our prior decision filed on July 10, 2012,  and ordered the parties to file briefs specifically addressing the issue of waiver, in addition to the issues originally presented on appeal.
In her substituted brief, Norine raises the following issues for our review:
1. Did the Superior Court panel opinion err in holding that the issues on appeal were waived for non-compliance with Pa.O.C.R. 7.1?
2. Did the [Orphans' Court] abuse its discretion and commit an error of law by failing to apply the proper standard of review?
3. Did the [Orphans' Court] abuse its discretion because its factual findings do not support a finding of testamentary capacity?
4. Did the [Orphans' Court] abuse its discretion by misstating and then relying upon a critical evidentiary fact concerning an element of undue influence?
5. Did the [Orphans' Court] abuse its discretion and commit an error of law by failing to give due consideration to the testimony as a whole and the interest of the witnesses?
Substituted Brief of Appellant, at 4 (renumbered for ease of disposition).
We begin with Norine's first claim, addressing the issue of waiver. The panel concluded, having raised the issue sua sponte, that Norine had waived all of her issues on appeal for failure to preserve them through the filing of exceptions. Orphans' Court post-trial practice is governed by Pa.O.C.R. 7.1, which provides, in relevant part, as follows:
(a) General Rule. . . . [N]o later than twenty (20) days after entry of an order, decree or adjudication, a party may file exceptions to any order, decree or adjudication which would become a final appealable order under Pa.R.A.P. 341(b) or Pa.R.A.P. 342 following disposition of the exceptions. . . . Failure to file exceptions shall not result in waiver if the grounds for appeal are otherwise properly preserved.
Pa.O.C.R. 7.1(a) (emphasis added). The panel concluded that, although the filing of exceptions is optional under Rule 7.1 ("a party may file exceptions"), issue preservation is not (no waiver for failure to file, but only "if the grounds for appeal are otherwise properly preserved"). Pa.O.C.R. 7.1. Thus, the panel interpreted Rule 7.1 to mean that exceptions are mandatory in those instances where a claim has not been preserved before the trial court through objection, motion or otherwise. Because Norine raised weight-of-the-evidence claims, and such claims, by their nature, can only arise after the court issues its final decision in a matter, the panel concluded that she was required to preserve the claims by filing exceptions. Having failed to do so, Norine's claims were deemed waived and the decree of the Orphans' Court was affirmed. For the following reasons, we disagree with the panel's conclusions.
Appellate review of weight of the evidence claims is limited. It is well-settled that:
[a]ppellate review of a weight claim is a review of the [trial court's] exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations omitted). Accordingly, there is a general rule barring appellate review of weight claims in the first instance. Armbruster v. Horowitz, 813 A.2d 698, 703-04 (Pa. 2002). As such, where an appellant fails to raise a weight claim before the trial court, thus preventing it from addressing the claim from the vantage point of having presided over the trial, the claim is unreviewable on appeal.
Here, we are presented with a scenario in which neither the applicable Orphans' Court procedural rule, nor case law interpreting it, explicitly requires the filing of post-trial motions to preserve claims for appellate review. The appellant raised weight claims, not in post-trial motions, but in a court-ordered Rule 1925(b) statement. Under normal circumstances, this should have been sufficient to give the Orphans' Court an opportunity to review the claim in the first instance. However, in this case, by the time Norine filed her timely notice of appeal and Rule 1925(b) statement, the trial judge, the Honorable Linda Wallach Miller, had retired from the bench. Accordingly, in response to Norine's Rule 1925(b) statement, the newly assigned judge, the Honorable Arthur L. Zulick, simply issued a brief statement relying on Judge Miller's earlier opinion, which had not addressed Norine's weight claim. As such, the presiding trial judge did not, and will never be able to, address those claims.
Our Supreme Court's holding in Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997), is instructive here. In Widmer, the Court was confronted with the question of whether a weight claim not raised in then-optional post-sentence motions,  but nevertheless raised in a Rule 1925(b) statement and thoroughly addressed by the trial court in its Rule 1925(a) opinion, was preserved for appellate review. In holding that the appellant had preserved the issue despite his failure to file optional post-sentence motions, the Court observed the following:
The issue under consideration – the weight of the evidence – is an exceptional issue which is unlikely to be preserved for appeal without the filing of a post-sentence motion. Thus, the option of forgoing a post-sentence motion and proceeding directly to the Superior Court, as permitted by Rule 1410, may not preserve the issue for appeal. Nevertheless, . . . the trial court . . . reviewed the weight of the evidence claim prior to the Superior Court's review, and clearly held that the verdict was in fact contrary to the weight of the evidence. Therefore, the precept . . . that a weight of the evidence claim must be addressed in the first instance by the trial court has been met. There was no need for the Superior Court to review a cold record and make an initial determination concerning the weight of the evidence[.] That being the case, it was error for the Superior Court . . . to rule that appellant's failure to file a post-sentence motion for a new trial had the effect of waiving his claim that the verdict was contrary to the weight of the evidence.
Id. Accordingly, the Supreme Court instructed this Court to remand the case to the trial court to allow the appellant to file a nunc pro tunc motion for a new trial, challenging the weight of the evidence.
Here, as in Widmer, we are confronted with a situation in which the applicable procedural rule – in this case Pa.O.C.R. 7.1 – does not require the filing of post-trial motions; nor does it specifically require weight of the evidence claims to be raised via post-trial motions. Also similarly, the issue requiring preservation is a weight claim, an "exceptional issue which is unlikely to be preserved for appeal without the filing of a post-sentence motion." Id. Like former Rule 1410, Rule 7.1 specifically notes that issues preserved before or during trial are not waived for failure to do so. Similarly, both rules are silent as to the manner in which weight of the evidence claims are to be preserved. Thus, although Widmer did not involve Rule 7.1, we conclude that the Court's rationale in interpreting former Rule 1410 applies here. Thus, by raising her weight claim in a timely-filed Rule 1925(b) statement, Norine successfully preserved the issue for appellate review.
Our inquiry does not, however, end here. Our disposition of this case is complicated by the fact of Judge Miller's retirement. In Widmer, the trial court had, in fact, addressed the appellant's weight claim in its Rule 1925(a) opinion. Here, however, Judge Miller retired before she was able to address Norine's weight claim. Thus, were we to remand the case with instructions to the Orphans' Court to review Norine's weight claims, the newly-assigned judge would be reviewing a cold record. However, we do not believe that Norine should be denied appellate review of her weight claims for reasons which were beyond her control.
Our Supreme Court, in Armbruster, supra, addressed the question of whether an appellate court may review a properly preserved weight claim where the judge who presided over the trial resigned from the bench without ruling on the claim in the first instance. After considering the available options in light of the interests of judicial economy and fairness to appellate litigants, the Court concluded that, "where a properly preserved weight of the evidence claim is raised on appeal and the judge who presided at trial failed to rule on the claim and is now permanently unavailable to do so, the claim must be reviewed by the appellate tribunal in the first instance." Armbruster, 813 A.2d at 705. Accordingly, because Norine properly preserved her weight claim and Judge Miller is permanently unavailable to review it, we will do so here.
Norine's second claim is that the Orphans' Court abused its discretion and committed an error of law by failing to apply the proper standard of review. Norine claims that, while the court cited the proper burden-shifting standard in its opinion, it failed to actually apply that standard in practice. We find this claim to be without merit.
We begin by noting:
In a will contest, the hearing judge determines the credibility of witnesses. The record is to be reviewed in the light most favorable to appellee, and review is to be limited to determining whether the trial court's findings of fact were based upon legally competent and sufficient evidence and whether there was an error of law or abuse of discretion.
Estate of Reichel, 400 A.2d 1268, 1269-70 (Pa. 1979).
"The resolution of a question as to the existence of undue influence is inextricably linked to the assignment of the burden of proof." In re Estate of Clark, 334 A.2d 628, 632 (Pa. 1975). Once the proponent of the will in question establishes the proper execution of the will,  a presumption of lack of undue influence arises; thereafter, the risk of non-persuasion and the burden of coming forward with evidence of undue influence shift to the contestant. Id. The contestant must then establish, by clear and convincing evidence, a prima facie showing of undue influence by demonstrating that: (1) the testator suffered from a weakened intellect; (2) the testator was in a confidential relationship with the proponent of the will; and (3) the proponent receives a substantial benefit from the will in question. Id. Once the contestant has established each prong of this tripartite test, the burden shifts again to the proponent to produce clear and convincing evidence which affirmatively demonstrates the absence of undue influence. Id.
Here, the parties stipulated to the proper execution of the will. As such, risk of non-persuasion and the burden of coming forward with evidence of undue influence immediately shifted to William as the contestant. See id. In its opinion, the Orphans' Court reviewed the testimony presented at trial, as well as the deposition transcripts entered into evidence, and concluded that the testimony of William's witnesses was credible, while Norine's testimony was not. See Trial Court Opinion, 11/18/11, at 8 ("[Norine's] testimony was inconsistent with that of the other witnesses and we did not find her credible."). Norine's testimony was the sole evidence presented in support of the validity of the 2008 will as related to the claim of undue influence. Thus, while the court did not explicitly explain its burden-shifting analysis, the fact that the court found Norine's testimony incredible implicitly means that it concluded that Norine had failed to prove, ...