February 28, 2014
ANNA ZURO, BY HER ATTORNEY-IN-FACT ANDREW LASOSKY,
BARRY LASOSKY AND LORI LASOSKY, Husband and Wife, APPEAL OF: ANDREW LASOSKY Appellant
Appeal from the Order entered on November 28, 2011 in the Court of Common Pleas of Washington County, Civil Division, No. 2007-9252
BEFORE: PANELLA, OLSON and MUSMANNO, JJ.
Anna Zuro ("Zuro"), through her attorney-in-fact, Andrew Lasosky ("Andrew"), appeals from the trial court's Order entering a compulsory nonsuit against Zuro and in favor of Barry Lasosky ("Barry") and Lori Lasosky ("Lori") (collectively, "the Lasoskys"). We reverse and remand for further proceedings.
The trial court summarized the history underlying the instant appeal as follows:
[Zuro] was the mother of two children, Andrew[, ] and Ann Toth, and the grandmother of six. [Zuro] was born in 1917. She lived independently until the year 2000, when she sold her home and moved in with her son Andrew and his wife[, ] Nadine [Lasosky ("Nadine")]. [Zuro] had enjoyed a close relationship with her grandson[, ] Barry; he had worked close to her home and often went there for lunch. In 1998, [Zuro] loaned [the Lasoskys] money so that they could purchase a personal care home. [In September 1999, Zuro entered into a mortgage agreement with Mon Valley Community Federal Credit Union for $137, 001.87. The mortgage was secured by the personal care home property in East Bethlehem Township and Zuro's residence.] [Zuro] intended to move into that personal care home[, ] but was unhappy with the accommodations offered to her and instead moved in with Andrew and Nadine. She remained with them until late 2008, when she went into a nursing home. Shortly thereafter, on January 10, 2009,  Zuro died.
After she moved in with Andrew and Nadine[, ] Zuro did not see Barry very often. Andrew and Nadine took [Zuro] to all medical appointments and provided all means, as [Zuro] never drove a car. [Zuro] shared her $800 a month income (Social Security) by paying $400 a month rent. Nadine  testified that [Zuro] began getting confused in early 2006. Andrew  testified that [Zuro] started slipping mentally in 2004. Nadine testified that [Zuro] began acting out particularly at nighttime, when [Zuro] wandered out in the middle of the night and got hurt and had to be hospitalized.
On June 8, 2006, [the Lasoskys] came and picked up [Zuro] and took her out to dinner. They were gone quite a long time and Andrew and Nadine speculated that Barry must have taken his grandmother on a long ride, an activity which she greatly enjoyed. They learned later that Barry and [Zuro] visited a lawyer's office and executed the deed in question[.
Trial Court Opinion, 3/20/13, at 2-3 (footnote added).
Subsequently, Zuro, through Andrew as her attorney-in-fact, filed the instant action against the Lasoskys. Zuro sought to set aside the deed she executed on June 8, 2006, asserting that the deed was obtained through the undue influence of the Lasoskys. On March 13, 2012, the trial court conducted a bench trial on the matter. At the close of Zuro's case-in-chief, the Lasoskys moved for a compulsory nonsuit. The trial court granted the Lasosky's Motion, dismissing Zuro's cause of action. Zuro filed post-trial Motions, which the trial court denied. Andrew, for Zuro, filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
a. Whether [t]he [trial c]ourt erred in concluding that [Andrew] failed to demonstrate by clear and convincing evidence that  Zuro had a confidential relationship with her grandson, Barry[?]
b. Whether the [trial c]ourt erred in concluding that [Andrew] had failed to demonstrate by clear and convincing evidence that [Zuro] suffered from a weakened intellect at the time of the execution of the June 8, 2006, deed conveying her interest in property to her grandson and his wife[?]
Brief for Appellant at 3. In the Argument section of his appellate brief, Andrew addresses these claims together.
Andrew challenges the trial court's entry of non-suit against Zuro.
[T]he trial court … may enter a nonsuit if the plaintiff has failed to establish a right to relief. Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial court's grant of a nonsuit, "we must view the evidence adduced on behalf of the [plaintiff] as true, reading it in the light most favorable to [her]; giving [her] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [her] favor." Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993). Accord Taliferro v. Johns-Manville Corp., 421 Pa.Super. 204, 208, 617 A.2d 796, 799 (1992). Additionally, a compulsory nonsuit may be entered only in cases where it is clear that the plaintiff has not established a cause of action.... When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action.... Taliferro[, ] … 617 A.2d at 799. …
Kefer v. Bob Nolan's Auto Serv., Inc., 59 A.3d 621, 631 (Pa. Super. 2012) (citation omitted).
Andrew (for Zuro) sought to set aside the June 8, 2006 deed, claiming that it was obtained through Barry's undue influence over Zuro. Andrew argues that the evidence presented at trial was sufficient to meet the initial burden of establishing undue influence. Brief for Appellant at 17. According to Andrew, the trial court improperly failed to consider significant evidence that (a) Zuro had a confidential relationship with Barry; and (b) Zuro suffered from a weakened intellect. Id. at 14. Andrew points out evidence that Zuro used her home as collateral for the purchase of the Lasoskys' personal care home, see id.; Zuro used Barry's attorney, not her own attorney, in the transaction, see id.; and Zuro provided Barry with unfettered access to her home/asset, see id. at 15.
"Where a confidential relationship exists, the law presumes the transaction voidable unless the party seeking to sustain the validity of the transaction affirmatively demonstrates that it was fair under all of the circumstances and beyond reach of suspicion." Weir v. Estate of Ciao, 556 A.2d 819, 825 (Pa. 1995).
[A] conveyance of real property by way of deed is presumptively valid and will not be set aside unless it is shown by clear and convincing evidence that the transfer was improperly induced by fraud or other misconduct on the part of the transferee. Written instruments are not to be set aside except upon convincing testimony that their execution was tainted by either actual or constructive fraud, or that the person executing the instrument lacked sufficient mental capacity. The burden of proving that the transfer was the product of a lack of mental capacity, undue influence, fraud, or a confidential relation is on the person seeking to set aside the deed….
Walsh v. Bucalo, 620 A.2d 21, 22-23 (Pa. Super. 1993) (citations and internal quotation marks omitted).
Our Pennsylvania Supreme Court has explained that
[t]he existence of a confidential relationship may be found either as a matter of law or as a matter of fact. In Ringer v. Finfrock, 340 Pa. 458, 461, 462, 17 A.2d 348 (1941), [the Pennsylvania Supreme] Court said: "[s]uch a [confidential relation] is not restricted to any particular personal association…. It may  exist as a matter of fact wherever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on the one side, or weakness, dependence or justifiable trust, on the other…."
Truver v. Kennedy, 229 A.2d 468, 474 (Pa. 1967); accord In re Estate of Clark, 359 A.2d 777, 781 (Pa. 1976). A confidential relationship "is marked by such a disparity in position that the inferior party places complete trust in the superior party's advice and seeks no other counsel." In re Estate of Fritts, 906 A.2d 601, 608 (Pa. Super. 2006) (citation omitted).
Our review of the record discloses that Andrew presented sufficient evidence of record so as to preclude the entry of compulsory nonsuit. Andrew presented evidence that in 1998, Zuro mortgaged her own property to loan the Lasoskys the funds necessary to purchase a personal care home. N.T., 3/13/12, at 72-73. In exchange, Zuro was to have an apartment at the facility and a 50% interest in the personal care home. Id. at 24, 38. Although Andrew recommended that Zuro seek the advice of an attorney, Zuro did not do so. Id. at 38, 73-74. Barry's lawyer handled everything related to the loan. Id. at 39. At the time of the initial loan, Zuro and Barry were extremely close, and had lunch together almost every day. Id. at 39.
When relatives came to visit in 2000, Zuro took them to view the Lasoskys' personal care facility. Id. at 76. When Zuro and her relatives arrived at the location,
[t]here was [sic] no shelves, there was no bathroom, there was no outside porch that was fenced in with a top. [Zuro] wanted to pray to the rosary. There was nothing. She was disgusted that [Barry] lied. She said, "He lied to me. But forget about it. It's in God's hands." …
Id. Within a few days, Zuro asked to live with Andrew and Nadine. Id. at 76-77. Subsequently, Zuro became concerned that Barry was making purchases, but had not re-paid her loan. Id. at 75.
Andrew explained that Zuro began declining cognitively in 2004. Id. at 95. Around the first part of 2006, a few years after moving into Andrew and Nadine's home, Zuro became forgetful and was unable even to answer the telephone and take a message. Id. at 52, 53. Upon answering the telephone, Zuro "would give the person on the other side of the line a hard time because [Zuro] didn't understand what was really going on." Id. at 52. Although Zuro signed a will in 2007, Zuro "was having problems and she was on medication." Id. at 102.
Dr. Margaret Meals, an expert in geriatrics, also testified regarding Zuro's mental condition. The trial court summarized the evidence presented by Dr. Meals as follows:
Dr. Margaret Meals, a physician board certified in internal medicine and geriatrics, was offered as a medical expert by [Andrew]. Dr. Meals reviewed the records from [Zuro's] treating physician, Dr. Maine, and the hospital records. She testified that she believed that [Zuro] had a "weakened intellect" in 2006. She further testified that in June of 2004, after starting a new medication, [Zuro] suffered from confusion and hallucinations and was hospitalized. The medication was stopped and she improved. A CT scan was done which showed some brain atrophy. In 2007, [Zuro] completed a Mini Mental Status Examination, in which she scored a 24 or 25 out of 30, which is indicative of mild dementia.
Trial Court Opinion, 3/20/13, at 1-3.
About six years after making the loan, Zuro demanded that Andrew inquire when Barry intended to repay the loan. N.T., 3/13/12, at 74. As Andrew explained,
After the six years or so was up, [Zuro] started every day on me that I am the worst son in the world because I don't want to find out about this for her.
I told her, "Mom, you made the mistake. You should have had an attorney." I said, "I don't know." She said, "If you was any kind of son, you would find out about it for me, find out where my money is at. He's buying these things. He's buying cars. He's buying trailers. He's buying a new farm. All of this stuff. You're not doing nothing."
Id. at 74-75.
On the day she signed the deed, Zuro told Andrew that she and Barry were going out for chicken wings. Id. at 78. At that time, Andrew reminded Zuro to discuss the loan with Barry. Id. at 78-79. Zuro returned home later than usual. Id. at 80. Andrew described Zuro's mental condition at the time she returned from this outing:
I said, "Where the heck did you go for these wings, to China?" [Zuro] said, "No. We went down Highway Appliance, down that way." She says, "A big white building." I says, "What the heck else did you do? It didn't take you all that time to eat the wings." She didn't know. She couldn't answer me.
Id. at 81. Thus, Andrew presented evidence that immediately after executing the deed, Zuro did not recall where she had gone that day or what she had done during that time period. Andrew testified that "[the o]nly thing she remembers is the Highway Appliance and the white thing she says and that was it. I mean, that's all I could get out of her." Id. Nadine confirmed that Zuro did not recall signing a deed transferring her interest in the personal care home. Id. at 47. Until her death, Zuro continued to ask Andrew to get her money back from Barry. Id. at 83.
The deed signed by Zuro relinquished her 50% interest in the personal care home property, for one dollar. Id., Joint Exhibit 2. The interest relinquished by the deed was valued at $237, 823. Id. at 24. This transfer of interest, for nominal value, rendered Zuro ineligible for long-term care services either in a nursing home or through a waiver program at a state agency for a period of 1, 044 days. Id.
This evidence was sufficient to overcome the Lasoskys' Motion for compulsory nonsuit. Andrew presented evidence of Zuro's cognitive difficulties generally, and her specific inability to recollect what had transpired on June 8, 2006. Andrew had presented evidence of Zuro's historically close relationship with Barry, whereby she was willing to loan him funds to purchase a personal care home without securing independent counsel to represent her interests. The evidence further supports a finding that the transaction was marked by such a disparity in position that Zuro placed complete trust in Barry's advice, and sought no other counsel. See In re Estate of Fritts, 906 A.2d at 608. Andrew presented evidence, which, if taken as true, established that Zuro had placed such confidence in Barry, and was of such intellect, that that they did not deal with each other on equal terms on June 8, 2006.
Accordingly, we reverse the Order granting compulsory nonsuit, and remand for a new trial.
Order reversed; case remanded for a new trial; Superior Court jurisdiction relinquished.