MONICA GAVIN AND LUCIA CAREZANI, EXECUTRIX OF THE ESTATE OF JAMES GAVIN, DECEASED Appellant
from the Judgment Entered March 11, 2016 In the Court of
Common Pleas of Lehigh County Civil Division at No(s):
BEFORE: BOWES, OTT AND SOLANO, JJ.
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.
March 25, 2014, Monica 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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
16, 2012, a petition was filed for appointment of an
emergency guardian, pursuant to 20 Pa.C.S. § 5513,
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. 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
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.
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.
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.
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
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.
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 ...