Gavin v. Loeffelbein

         Appeal from the Judgment Entered March 11, 2016 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2014-C-914

          BEFORE: BOWES, OTT AND SOLANO, JJ.

          OPINION

          BOWES, J.

         Monica Gavin, individually, and Lucia Carezani, in her capacity as executrix of the estate of James Gavin, raise various challenges to the proceedings that culminated in a jury award in favor of Appellee Elaine Loeffelbein. We affirm.

         On March 25, 2014, Monica^[1] instituted this action pro se against Elaine, presenting the following allegations. Monica was married to James Gavin, who was Elaine's brother. On May 28, 2010, Monica filed an action in divorce from James, but both Monica and James continued to reside at the marital residence with their two children, Edric and Aubrey. Monica and James lived separate and apart within that abode. On May 24, 2012, the Honorable Edward D. Reibman of the Lehigh County Court of Common Pleas appointed an emergency guardian, Laurie Dart Schnaufer, for James. Ms. Schnaufer placed James in an assisted living facility in Allentown while Monica remained in the marital home with the children. Without the knowledge of Monica or Ms. Schnaufer, Elaine and James went to the marital residence on July 9, 2012. Edric, who was seventeen years old, and Aubrey, who was fourteen, allowed Elaine and James inside. Monica claimed that, even though James co-owned the residence, the entry was unauthorized because James was not capable of giving consent to it.

         The complaint also averred that James and Elaine, with the assistance of Edric and Aubrey, removed a collection of rare books and autographs with an estimated value of $515, 000 and took it to a storage locker over which Elaine had control. Monica admitted in the complaint that the collection of books and autographs belonged to James. Complaint, 3/25/14, at ¶ 17. She reported that she had inventoried eighty percent of that collection before James and Elaine removed it from the marital residence. Monica contended that the collection was stolen from the marital home since James did not have the capacity to consent to the transfer of control over the collection to Elaine. On August 20, 2012, Judge Reibman appointed Elaine permanent guardian of James.

         Monica also indicated that the following occurred. The court overseeing the divorce proceeding accorded Monica the right to inventory James' collection of rare books and autographs. The boxes containing the collection were taken from the storage facility to the office of Elaine's counsel, where Monica catalogued the items in the boxes in a room by herself. In her pro se complaint, Monica averred that 296 items with an estimated value of $236, 161 were missing from the boxes brought to their office. Monica maintained that she lost $236, 000 in marital assets as a result of Elaine's actions and requested compensatory and punitive damages against Elaine.

         Elaine filed preliminary objections to the complaint arguing that the complaint was insufficient to support a claim for relief, including a punitive damages award. She observed that Monica had failed to specify the cause of action that she purported to present and continued that Monica failed to present any specifics to support her position that Elaine had been negligent.

         Monica obtained an attorney, who thereafter filed an amended complaint, wherein the following supplemental averments were presented. The collection included rare books, autographs, antiques, and memorabilia valued at approximately $515, 000, and Monica had partially inventoried the collection before James and Elaine removed it from the marital home. Monica claimed that she owned the collectibles and that Elaine had stolen, misplaced, or was otherwise accountable for the collection after its removal. Monica continued that items were missing from the collection after it was taken from the marital residence and again claimed that those articles had an estimated value of $236, 000.

         The amended complaint raised counts in trespass, conversion, negligence, and punitive damages. It specified that Elaine purportedly was negligent because she failed to 1) obtain lawful consent to remove James' collection on July 9, 2012; 2) properly store and safeguard the collection after removing it; 3) inventory and oversee the collection; 4) insure the collection against loss; 5) take reasonable steps to prevent the collectibles from being stolen, lost, or misplaced; and 6) return the collection when Monica demanded it be placed in her custody.

         As damages, Monica claimed the loss of collectibles, which were enumerated in an exhibit to the amended complaint, with a value of $236, 000. She requested punitive damages by averring that Elaine's conduct was extreme and outrageous in that Elaine took "advantage of a legally incompetent person (i.e. James Gavin) by tricking her way into [Monica's] home, without lawful consent, and removing irreplaceable collectibles[.]" Amended Complaint, 5/22/14, at ¶ 27.

         Elaine responded to the amended complaint with another set of preliminary objections raising the contentions that the pleadings were legally insufficient to support the outlined causes of action. She also averred that the complaint failed to join a necessary party, James Gavin. Monica then filed a second amended complaint, which added as a plaintiff, "James Gavin, an incapacitated person, by Susan Maurer, guardian." Second Amended Complaint, 6/2/14, at 1, 2. Monica indicated that on November 15, 2013, Elaine had been replaced as James' guardian by Ms. Maurer.

         Ms. Maurer filed preliminary objections to the second amended complaint maintaining that James lacked the capacity to be brought into the suit and that James and Monica had an agreement in place in the divorce action for an alternative resolution involving the same collection. Elaine also filed preliminary objections to the second amended complaint averring that the trespass count was legally insufficient since it did not aver injury to the real estate and that there were insufficient facts to support an award for punitive damages. Both of these preliminary objections were overruled, and Elaine filed a responsive pleading to the second amended complaint.

         This civil action was assigned to the same judge who had presided over James' guardianship proceedings. Discovery was conducted, and Elaine filed a motion for summary judgment, which was denied. On January 24, 2015, James died, and the caption was amended to reflect that Lucia Carezani, in her capacity as executrix of the estate of James Gavin, was substituted as plaintiff. The matter proceeded to a jury trial that occurred from June 9-12, 2015.

         The following evidence was adduced at trial. Monica married James in 1987, producing two children. In 1997, they moved to the marital residence on Jordan Road in Lehigh County. Monica was employed as a physician while James, who was well-educated, served as a stay-at-home father. After Monica filed for divorce in May, 2010, James desired to remain close to his children, as he had been their primary caregiver. Even though he and Monica occupied separate floors, James continued to live at the marital home, and the property remained in their joint names. As James believed that Monica was alienating his children from him, the living situation became stressful for James, and he began to display signs of dementia.

         James had a collection of memorabilia, which he kept in boxes in the basement, and he desired to bestow that collection on his children. By April 2012, James became concerned that Monica would dissipate the collection, and sought to protect it. James asked his neighbor, David Greene, to remove part of the collection from the Jordan Road residence. Boxes from the collection were taken to a storage facility rented on James' behalf.

         On May 16, 2012, a petition was filed for appointment of an emergency guardian, pursuant to 20 Pa.C.S. § 5513, ^[2] over James' person and estate. Following a hearing, the trial judge found that James' ability to receive and evaluate information effectively and communicate reasonable decisions was impaired. That jurist entered an order on May 24, 2012, appointing Ms. Schnaufer as an emergency guardian of James' person and estate.^[3] The order directed the guardian to remove James from the Jordan Road residence and admit him to an independent living/personal care facility, which she did the following day. Ms. Schnaufer also was accorded the power to determine, assemble, and administer James' property.

         In July 2012, Elaine traveled to Pennsylvania to visit James, and found him upset and anxious. He told Elaine that he wanted to remove the remaining boxes of his collection from Jordan Road and place them in the storage facility so that Monica would not destroy or dissipate it. James had directed Ms. Schnaufer to have the boxes removed, but she had failed to abide by his request, and he was dissatisfied with her. James' neurologist told Elaine that James should avoid stress as it would worsen his condition.

         On July 9, 2012, after James spoke with Elaine about his distress over his memorabilia remaining at Jordan Road, Elaine unsuccessfully attempted to reach Ms. Schnaufer. Elaine was able to contact James' attorney, Gerald Barr, Esquire, who informed her that James had the right to remove his personal things from the Jordan Road residence, and that she could go to that residence with James for that purpose. After receiving this information from the lawyer, Elaine and James went to the Jordan Road residence, and James' children admitted them into the house. Next, James, Elaine, and the two children took between eight and ten boxes containing the rest of the memorabilia collection and placed those boxes in the storage facility.

         On August 20, 2012, a hearing for a permanent guardianship was held and James was found to be incapacitated and in need of plenary guardianship services. The court appointed Elaine guardian of James' person and estate. Later, the boxes taken by Elaine and James were delivered to Mr. Barr's office for Monica to inventory. Monica was left alone in the room with the boxes when she inspected them. Monica, who represented that she had inventoried about eighty percent of the collection before it was taken, claimed that items worth $236, 000 were missing from the boxes.

         After Appellants presented their evidence, the trial court granted Elaine's request for a nonsuit as to the trespass and punitive damages counts set forth in the complaint. The jury returned a verdict in favor of Elaine on the conversion and negligence counts. This appeal followed denial of post-trial motions and entry of judgment on the verdict. Appellants raise these positions:

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 Gavin consented to the taking 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 of fact are not defenses to conversion?

3. Did the court err by failing to charge the jury that defendant had a duty of reasonable care over collectibles she voluntarily took control over?

4. Did the court err by charging the jury spoliation against Appellants where there was no bad faith and the items allegedly disposed of had no evidentiary value?

B. Did the court err by granting a nonsuit as to trespass where James Gavin could not lawfully consent to defendant entering the Gavin residence and taking the collectibles?

C. Did the court err by granting a nonsuit as to punitive damages where Appellant[s] proved an intentional tort and evidence was offered to support the conclusion that defendant acted in total disregard for the rights of others?

Appellants' brief at 6.

         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 collection from that residence. Based upon this premise, they claim that the trial court erroneously instructed the jury that it could ...