In re: Kilijian, H. Appeal of: Boghossian, L.

J-A21025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: HILDA KILIJIAN IRREVOCABLE IN THE SUPERIOR COURT OF

TRUST PENNSYLVANIA

APPEAL OF: LYNNE BOGHOSSIAN

No. 3175 EDA 2013

Appeal from the Order Entered October 10, 2013

In the Court of Common Pleas of Montgomery County

Orphans' Court at No(s): 2009-2314

BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2014

Lynne Boghossian appeals from the order entered October 10, 2013, in

the Court of Common Pleas of Philadelphia County, granting summary

judgment in favor of the Hilda Kilijian Irrevocable Trust (“HKIT”), and

dismissing Boghossian’s second amended complaint with prejudice. On

November 21, 2006, Hilda Kilijian created the HKIT. She has no children but

has two nieces, Boghassian and Lesley Brown, who are sisters. Upon

Kilijian’s death, the HKIT is to be distributed to Brown and members of her

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

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family.1 Boghossian is not named as a co-trustee or beneficiary under the

HKIT. Boghossian instituted this action, largely on the basis that the HKIT

was created and executed under the undue influence of Brown and her

husband, John F. Brown. In granting the HKIT’s motion for summary

judgment, the orphans’ court found there was no evidence that the trust was

formed and funded under undue influence. On appeal, Boghossian raises

the following three claims: (1) the orphans’ court abused its discretion

and/or erred when it considered a stipulation that was not part of the

current record but was from a companion matter, and depositions taken in

violation of that stipulation; (2) the orphans’ court abused its discretion by

granting summary judgment prematurely because discovery was still open,

no trial date was set, and less than four months of discovery had

commenced in the matter; and (3) the orphans’ court abused its discretion

and/or erred when it ignored evidence of a confidential relationship, failed to

shift the burden to the HKIT, and decided all inferences in favor of the HKIT

while ignoring the weakened intellect of Kilijian.2 Boghossian’s Amended

Brief at 14. Based on the following, we affirm.

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1

Specifically, 50% to Brown, 25% to Brown in trust for her daughter, and

25% to Brown in trust for her son.

2

We have reordered the first and second arguments based on the nature of

our analysis.

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The facts underlying this appeal are well-known to the parties, and we

need not recite them herein. See Orphans’ Court Opinion, 10/10/2013, at

2-5.3 On October 10, 2013, the orphans’ court granted the HKIT’s motion

for summary judgment, finding Boghossian had “presented no facts which

could establish directly that Ms. Kilijian was unduly influenced by the Browns

or by any other party at the time of the formation of the Trust.” Id. at 9.

The court also dismissed Boghossian’s complaint with prejudice. Seven days

later, Boghossian filed a motion for reconsideration. The court denied the

motion the next day because Boghossian did not file exceptions within 20

days pursuant to Pa.O.C.R. 7.1. On November 12, 2013, Boghossian filed

this timely appeal.4

We begin with our well-settled standard of review:

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3

We note Kilijian was adjudicated an incapacitated person in a separate

proceeding before the orphans’ court on September 30, 2010, and Brown

was appointed plenary permanent guardian of her person. Anna Sappington

now serves as plenary permanent guardian of the estate of Hilda Kilijian.

See Mongomery County Court of Common Pleas, Orphans’ Court Division,

Docket No. 2009-X2351. On September 24, 2010, the orphans’ court

confirmed the appointment of Bryn Mawr Trust Company as successor

trustee of the HKIT, to serve with Brown. On January 22, 2013, the court

accepted the resignation of Bryn Mawr Trust Company as trustee and

confirmed the appointment of Haverford Trust Company as successor

trustee.

4

It merits mention that generally, an appellant has 30 days to file a notice

of appeal from a final order. See Pa.R.A.P. 903. Here, Boghossian’s notice

was timely, as the due date fell on the weekend and because Monday,

November 11, 2013, was a court holiday, Veteran’s Day (observed).

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Our standard of review of the findings of an Orphans’ Court is

deferential.

When reviewing a decree entered by the Orphans’ Court,

this Court must determine whether the record is free from

legal error and the court’s factual findings are supported

by the evidence. Because the Orphans’ Court sits as the

fact-finder, it determines the credibility of the witnesses

and, on review, we will not reverse its credibility

determinations absent an abuse of [] discretion.

In re Estate of Harrison, 2000 PA Super 19, 745 A.2d 676,

678 (Pa. Super. 2000) (internal citations omitted). If the court’s

findings are properly supported, we may reverse its decision only

if the rules of law on which it relied are palpably wrong or clearly

inapplicable. See id. at 678-79.

Owens v. Mazzei, 847 A.2d 700, 706 (Pa. Super. 2004).

In Boghossian’s first argument, she asserts the orphans’ court abused

its discretion and/or erred when it considered a stipulation that was not part

of the current record but was from a companion matter, and depositions

taken in violation of that stipulation. Boghossian’s Amended Brief at 29-30.

She claims the court erred in considering these depositions “taken in

violation of [a] governing stipulation without first allowing the proper cross

examination” by her counsel. Id. at 30.

By way of background, Boghossian avers that in 2009, she

commenced an action in Montgomery County Court of Common Pleas,

Orphans’ Court Division, Docket No. 09-2351, in which she sought the

appointment of a guardian for Kilijian. Boghossian states the parties

conducted discovery, but that that evidence is “completely unrelated to the

claims” she asserts in the present matter as it was “limited solely to the

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issue of the competence of Hilda Kilijian at that time and, therefore, whether

she needed the appointment of a guardian for her estate and her person.”

Id. at 30 (emphasis removed). Moreover, she states that in violation of a

stipulation, entered into by the parties in the competency proceeding, John

Brown scheduled three Florida depositions covered by the parties’ stipulation

on dates in which Boghossian’s counsel was unavailable and did not

participate.5 Id. at 32-34. Boghossian concludes it was an error by the

orphan’s court to consider these improper depositions.

Before addressing the merits of this issue, we must determine whether

Boghossian has properly preserved this claim for appellate review.

Boghossian raised this argument for the first time in her motion for

reconsideration of the orphans’ court’s October 10, 2013, order granting the

HKIT’s motion for summary judgment. See Plaintiff, Lynn Boghossian’s

Motion for Reconsideration of the Court’s Order Dated October 10, 2013

Granting Defendant, Hilda Kilijian Irrevocable Trust’s Motion for Summary

Judgment, 11/7/2013, at 16-25. As noted above, the orphans’ court denied

____________________________________________

5

The stipulation provided the depositions could be conducted only “under

very specific guidelines,” including a date convenient to all counsel.

Boghossian’s Brief at 31. Contrary to Boghossian’s claim here, a review of

the record reveals that another attorney from the law firm of Boghossian’s

counsel made telephonic appearances at each of the three depositions and

did raise objections. See, i.e., Deposition of Michael Striar, 3/11/2011, at

15, 22, 25.

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Boghossian’s motion for reconsideration pursuant to Pa.O.C.R. 7.1. See

Order, 11/8/2013.

Pennsylvania Orphans’ Court Rule 7.1 governs the procedure for

challenging the entry of a final order, decree, or adjudication in orphans’

court proceedings. The rule provides, in relevant part:

(a) General Rule. Except as provided in Subdivision (e), no 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. If exceptions are filed, no appeal shall be filed until

the disposition of exceptions except as provided in Subdivision

(d) (Multiple Aggrieved Parties). Failure to file exceptions shall

not result in waiver if the grounds for appeal are otherwise

properly preserved.

(b) Waiver. Exceptions may not be sustained unless the grounds

are specified in the exceptions and were raised by petition,

motion, answer, claim, objection, offer of proof or other

appropriate method.

…

(g) Exceptions. Exceptions shall be the exclusive procedure

for review by the Orphans’ Court of a final order, decree

or adjudication. A party may not file a motion for

reconsideration of a final order.

Pa.O.C.R. 7.1(a), (b), (g) (emphasis added).

We agree with the orphans’ court that to the extent that Boghossian

attempts to raise this argument for the first time in her motion for

reconsideration, the issue is waived. Pursuant to Rule 7.1(g), the motion for

reconsideration was an improper filing, and Boghossian failed to raise the

claim either in exceptions to the orphan’s court order or by motion prior to

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the entry of the order. Accordingly, we conclude the claim is not preserved

for our review. See In re Estate of Rosser, 821 A.2d 615, 619 (Pa. Super.

2003) (new claims raised in motion for reconsideration were waived for

failure to properly preserve in accordance with Pa.O.C.R. 7.1(g)), appeal

denied, 831 A.2d 600 (Pa. 2003).

In Boghossian’s second argument, she claims the orphans’ court

abused its discretion in granting the HKIT’s motion for summary judgment

because the motion “was not ripe for consideration and was premature as

only a little over four months of discovery had expired, and discovery was

being propounded and depositions were to be noticed by [Boghossian] as

the additional discovery was necessary to establish additional genuine issues

of material fact.” Boghossian’s Amended Brief at 20. Moreover, Boghossian

asserts the court improperly granted summary judgment “while outstanding

discovery requests were not answered by [the] HKIT, and [was] in direct

disregard of the discovery stipulation signed by the parties.” Boghossian’s

Amended Brief at 22. Specifically, she claims discovery was delayed by the

following: (1) there was a September 8, 2009 order, staying all discovery,

that was not lifted until June 3, 2011; and (2) the defendants chose to file

motions for judgment on the pleadings rather than commence discovery

after that stay was lifted. Id. at 23-26. Boghossian avers that in

September 2012, she attempted to commence discovery by serving

interrogatories but none of the defendants complied with her request as they

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believed it was “premature” until the court decided their motions for

judgment on the pleadings, which did not occur until January 31, 2013,

when it entered its order. Id. at 26. Therefore, she states that “no

discovery was permitted until February 1, 2013 and it is only the defendant

HKIT that failed to respond to [her] initial discovery effort[.]” Id. at 29.

With respect to this claim, we are guided by the following:

Although parties must be given reasonable time to complete

discovery before a trial court entertains any motion for summary

judgment, the party seeking discovery is under an obligation to

seek discovery in a timely fashion. Kerns v. Methodist Hosp.,

393 Pa.Super. 533, 574 A.2d 1068, 1074 (1990). Where ample

time for discovery has passed, the party seeking discovery (and

opposing summary judgment) is under an obligation to show

that the information sought was material to their case and that

they proceeded with due diligence in their attempt to extend the

discovery period. Id., 574 A.2d at 1074.

Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. Super.

2004). See also Fort Cherry School Dist. v. Gedman, 894 A.2d 135, 140

(Pa. Super. 2006) (reasoning “[t]he Pennsylvania Rules of Civil Procedure do

not give [parties] an unlimited amount of time to conduct discovery”).

However, this Court has previously stated that the purpose of Rule 1035.2

“is to eliminate cases prior to trial where a party cannot make out a claim or

defense after relevant discovery has been completed; the intent is not to

eliminate meritorious claims prematurely before relevant discovery has been

completed.” Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 (Pa.

Super. 2009) (quotation omitted).

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Here, a review of the certified record reveals that Boghossian filed this

action in the Court of Common Pleas of Delaware County, Civil Division

(“Delaware County court”). The defendants, which did not include the HKIT

because it was not named in the original complaint,6 sought to have the

matter transferred to the Court of Common Pleas of Montgomery County,

Orphans’ Court Division. On September 8, 2009, the Delaware County court

granted the petition to transfer and stayed discovery until the orphans’ court

decided whether it was going to accept the transfer. Nevertheless, on

September 30, 2010, the parties entered a stipulation in the related matter

at Docket No. 09-2351, which provided, in relevant part:

Any party and counsel who have entered an appearance in the

underlying action originally designated CCP Delaware County No.

09-153 which was thereafter transferred to Montgomery County

Orphans Court or may have an interest in the potential claims

that might be asserted against the Hilda Kilijian Irrevocable

Trust (“HKIT”) (including the beneficiaries, [Brown’s son and

daughter] and their counsel or the trustees of the HKIT and their

counsel) shall have the right to proceed under the Court’s May 6,

2010 Order issuing a Commission to Obtain Testimony and

Documents Outside the Commonwealth, and promptly subpoena,

notice, and schedule the depositions authorized under that Order

on all topics relevant to the claims asserted in the underlying

action and the potential claims that could arise against the HKIT

from those alleged fact patterns.

…

Nothing in this paragraph shall preclude any party from

conducting other discovery and is in no way intended to

establish a discovery plan and/or discovery deadline.

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6

The original defendants were Kilijian, Brown, and Brown’s husband.

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R.R. 385a-386a, Stipulation of Counsel, 9/30/2010.

On June 3, 2011, the Montgomery County orphans’ court accepted

jurisdiction and granted Boghossian leave to file a second amended

complaint. On October 6, 2011, Boghossian filed a second amended

complaint, naming the HKIT as a defendant. All defendants filed preliminary

objections, which were dismissed December 1, 2011. The Browns and the

HKIT filed answers with new matter, as well as motions for judgment on the

pleadings. During this time, on September 18, 2012, Boghossian requested

her first set of interrogatories, which were addressed to defendants, Brown

and John Brown, relating to their answer with new matter to her second

amended complaint. See R.R. 1493a-1541a. On January 31, 2013, the

court determined that based upon Boghossian’s voluntary dismissal of

Counts I, II, and III of her second amended complaint and oral argument,

the court dismissed those counts with prejudice but declined to dismiss

Count IV as it related to the HKIT. Thereafter, the HKIT filed a motion for

summary judgment, which the orphans’ court granted on October 10, 2013.

The orphans’ court found the following:

[Boghossian]’s assertion that additional discovery is

needed at this time and that this motion is premature is

unavailing. [Boghossian] commenced this action in January of

2009, and has been engaged in substantial discovery over a

period of several years, and entered into a stipulation concerning

discovery in September of 2010. [Boghossian] has had

adequate time to develop facts in support of her allegations.

Orphans’ Court Opinion, 10/10/2013, at 11.

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We agree with the orphans’ court that Boghossian’s discovery

argument is meritless on several grounds. First, other than several bald

statements that information sought “was necessary to establish additional

genuine issues of material fact,”7 she develops no meaningful argument as

to what facts are still at issue and how they are material to her case. “We

will not consider these bald assertions in our analysis of this issue.”

Reeves, 866 A.2d at 1124, citing Eichman v. McKeon, 824 A.2d 305, 319

(Pa. Super. 2003), appeal denied, 839 A.2d 352 (Pa. 2003). Second,

Boghossian has not demonstrated that she “proceeded with due diligence in

[her] attempt to extend the discovery period.” Reeves, 866 A.2d at 1124.

As of September 30, 2010, by stipulation of the parties, Boghossian was put

on notice that she may depose individuals with respect to “the potential

claims that could arise against the HKIT from those alleged fact patterns.”

R.R. 385a, Stipulation of Counsel, 9/30/2010. Since that time, she made

only one request for interrogatories, which was directed at Brown and John

Brown, not the HKIT. Boghossian does not explain to this Court the efforts

she undertook to procure information from the HKIT.8

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7

See Boghossian’s Amended Brief at 20.

8

Consequently, and contrary to Boghossian’s argument, the proper date to

commence discovery in the matter was not February 1, 2013, when the

court denied the HKIT’s motion for judgment on the pleadings.

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Third, her reliance on Anthony Biddle Contractors, Inc. v. Preet

Allied Am. St., LP, 28 A.3d 916, 919 (Pa. Super. 2011), is misplaced, as

that case is distinguishable from the present matter. In that case, the

plaintiff filed a motion for extraordinary relief because the defendant had

failed to comply with its discovery obligations. The trial court denied the

motion as untimely. In reversing the trial court’s decision, a panel of this

Court found the court’s ruling constituted “an abuse of the trial court's

discretion because [the plaintiff] substantially complied” with the case

management order. Anthony Biddle Contractors, Inc., 28 A.3d at 924.

Moreover, it viewed “the trial court’s denial of [the plaintiff]’s motion for

extraordinary relief as the imposition of a discovery sanction against [the

plaintiff, which was] … unjustifiable in light of the minor nature of [the

plaintiffs]’s violation.” Id. at 925. Here, however, Boghossian did not file a

motion for extraordinary relief or seek any court order regarding the HKIT’s

alleged failure to comply with her discovery requests. Accordingly, we

decline to conclude the orphans’ court abused its discretion in granting the

HKIT’s motion for summary judgment in light of Boghossian’s claim that

additional discovery was necessary to establish genuine issues of material

fact. Therefore, her second argument fails.

In Boghossian’s final argument, she claims the orphans’ court erred in

granting the HKIT’s motion for summary judgment based on the following:

(1) the court failed to consider factual allegations that unequivocally

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demonstrated a confidential relationship between Brown and Kilijian;9 (2)

the court erroneously concluded that certain key facts were “undisputed,”10

found other undisputed facts based solely upon the improper consideration

of the deposition of Michael Striar, who was never cross-examined by

Boghossian’s counsel, and specifically failed to consider all inferences in

favor of Boghossian as the non-moving party; and (3) the court ignored key

facts that demonstrated the highly weakened intellect of Kilijian in 2006 and

the obvious undue influence imparted upon her by the Browns.11

Boghossian’s Amended Brief at 39.

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9

Specifically, Boghossian claims the court ignored evidence that Brown was

named Kilijian’s power of attorney on April 12, 2006, April 19, 2006, May 8,

2006, May 10, 2006, and December 28, 2007. See Boghossian’s Amended

Brief at 40, R.R. at 21a, 24a, 31a, 58a. However, a review of Boghossian’s

response to the HKIT’s Motion for Summary Judgment reveals that she did

not raise this argument before the orphans’ court or present this evidence

for review. See Plaintiff, Lynne Boghossian’s Memorandum of Law in

Support of Her Response to Defendant, the Hilda Kilijian Irrevocable Trust’s

Motion for Summary Judgment, 7/17/2013, at 13-17. Accordingly, to the

extent she challenges evidence of Kilijian naming Brown power of attorney

during this time, the issue is waived. See Pa.R.A.P. 302.

10

She states that two letters, dated May 8, 2006 and May 23, 2006, were

not authored by Kilijian because she does not have a typewriter or

computer. See Boghossian’s Amended Brief at 42-43. Moreover, with

respect to the May 23rd letter, Boghossian claims this note “was authored by

someone with legal knowledge of sophisticated financial documents (i.e.,

John Brown, Esquire) and not an 86 [year old] unsophisticated woman.” Id.

at 44.

11

Boghossian claims the court ignored the attorney-client relationship

between John Brown and Kilijian, and that “almost every single asset of Ms.

Kilijian was knowingly and voluntarily placed in joint names with Lynne

(Footnote Continued Next Page)

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We begin with our well-settled standard of review:

“[O]ur standard of review of an order granting summary

judgment requires us to determine whether the trial court

abused its discretion or committed an error of law[,] and our

scope of review is plenary.” Petrina v. Allied Glove Corp., 46

A.3d 795, 797-798 (Pa. Super. 2012) (citations omitted). “We

view the record in the light most favorable to the nonmoving

party, and all doubts as to the existence of a genuine issue of

material fact must be resolved against the moving party.”

Barnes v. Keller, 62 A.3d 382, 385 (Pa. Super. 2012), citing

Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 736 (Pa. Super.

2009) (citation omitted). “Only where there is no genuine issue

as to any material fact and it is clear that the moving party is

entitled to a judgment as a matter of law will summary

judgment be entered.” Id. The rule governing summary

judgment has been codified at Pennsylvania Rule of Civil

Procedure 1035.2, which states as follows.

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such

time as not to unreasonably delay trial, any party may

move for summary judgment in whole or in part as a

matter of law

(1) whenever there is no genuine issue of any

material fact as to a necessary element of the cause

of action or defense which could be established by

additional discovery or expert report, or

(2) if, after the completion of discovery relevant to

the motion, including the production of expert

reports, an adverse party who will bear the burden

of proof at trial has failed to produce evidence of

facts essential to the cause of action or defense

which in a jury trial would require the issues to be

submitted to a jury.

_______________________

(Footnote Continued)

Boghossian in 1996.” See Boghossian’s Amended Brief at 45-46. She

states the court must focus on the “motivation” for the “sudden change” by

Kilijian in 2006 to sever Boghossian as a beneficiary.

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Pa.R.C.P. 1035.2.

“Where the non-moving party bears the burden of proof on an

issue, he may not merely rely on his pleadings or answers in

order to survive summary judgment.” Babb v. Ctr. Cmty.

Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations

omitted), appeal denied, 65 A.3d 412 (Pa. 2013). Further,

“failure of a non-moving party to adduce sufficient evidence on

an issue essential to his case and on which he bears the burden

of proof establishes the entitlement of the moving party to

judgment as a matter of law.” Id.

Thus, our responsibility as an appellate court is to

determine whether the record either establishes that the

material facts are undisputed or contains insufficient

evidence of facts to make out a prima facie cause of

action, such that there is no issue to be decided by the

fact-finder. If there is evidence that would allow a fact-

finder to render a verdict in favor of the non-moving party,

then summary judgment should be denied.

Id. citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.

Super. 2011), quoting Jones v. Levin, 940 A.2d 451, 452-454

(Pa. Super. 2007) (internal citations omitted).

Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013).

As stated above, the crux of Boghossian’s argument is that the Browns

unduly influenced Kilijian during the creation and execution of the HKIT

based upon a confidential relationship between Kilijian and the Browns.

Here, the orphans’ court judge found the following:

[Boghossian] attempts to prove undue influence indirectly,

by showing that there was a confidential relationship between

the Browns and Ms. Kilijian. [Boghossian] points to several

interactions that she claims establish a confidential relationship

between Ms. Kilijian and the Browns. First, that Ms. Brown holds

power of attorney for Ms. Kilijian. Second, that Mr. Brown

represented Ms. Kilijian in the sale of her house in 2004. Third,

[Boghossian] alleges that the Browns “developed a [sic] extreme

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and bizarre confidential relationship” with Ms. Kilijian, and that

Ms. Kilijian “relied upn the Browns for not only legal decisions

but also, decisions affecting [Ms. Kilijian’s] life generally.”

[Boghossian]’s Memorandum, Response to Motion for Summary

Judgment at 15. Lastly, in her affidavit [Boghossian] claims that

“J. Brown and/or L. Brown have unduly influenced Kilijian to

liquidate numerous joint bank accounts, to terminate numerous

annuities for which myself, or my two (2) children, were the

beneficiary(ies), and to otherwise funnel assets into the HKIT.”

[Boghossian]’s Affidavit at 2-3. These unsupported allegations

are insufficient to establish clear and convincing evidence of a

confidential relationship at the time of formation of the Trust.

Although Ms. Brown was named as agent under power of

attorney for Ms. Kilijian, this power of attorney was signed in

2008. The Pennsylvania Supreme Court has held that [when] a

person grants power of attorney to the person who allegedly

exercised undue influence, it can be a clear indication of a

confidential relationship. Foster v. Schmitt, 429 Pa. 102, 108,

239 A.2d 471, 474 (1968); Estate of Clark, 461 Pa. at 63, 334

A.2d at 633-34 (citing Foster). Nevertheless, the mere

existence of a power of attorney does not establish a confidential

relationship as a matter of law. See Estate of Ziel, 467 Pa. 531,

542, 359 A.2d 728, 734 (1976). In addition, the evidence of a

confidential relationship must be specific to the point in time

when the challenged transaction occurred. Hera v. McCormick,

425 Pa. Super. 432, 447, 625 A.2d 682, 690 (1993); Leedom v.

Palmer, 274 Pa. 22, 27, 117 A. 410, 412 (1922) (a power of

attorney executed ten months after the will “is not sufficient

evidence to establish a preexisting confidential relation”).

The evidence of a power of attorney is relevant only

if it corresponds to the same point in time as the disputed

transaction. Ms. Kilijian named Ms. Brown as her agent

under a durable power of attorney in June 2008, nearly

two years after the HKIT was formed. Therefore, because of

the 19-month gap between the Trust’s formation and the

execution of power of attorney, [Boghossian]’s argument

that this power of attorney establishes a confidential

relationship between Ms. Kilijian and Ms. Brown at the

time the HKIT was created, is without merit.

Similary, [Boghossian]’s assertion that Mr. Brown’s legal

representation of Ms. Kilijian in the sale of her New Jersey home

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in 2004 does not demonstrate a confidential relationship and is

also irrelevant to the time of the creation of the HKIT. Mr.

Brown’s legal representation appears to be limited to the sale of

the home, and did not extend to representation in other financial

matters. [Boghossian] has not produced any evidence to the

contrary. Specifically, Mr. Brown’s legal relationship with Ms.

Kilijian was unrelated to her decision to form the HKIT, did not

make Ms. Kilijian dependent upon Mr. Brown, and was

sufficiently limited that it does not raise a concern of a

confidential relationship.

Lastly, [Boghossian] contends in an unspecified manner

that the Browns’ relationship with Ms. Kilijian was “extreme” and

“bizarre,” and that the Browns made both legal and personal

decisions for Ms. Kilijian. According to [Boghossian,] the Browns

“unduly influenced” Ms. Kilijian to make financial decisions that

would divert assets away from [Boghossian] and finance the

HKIT. See [Boghossian]’s Affidavit at 2-3. In order to establish

a genuine issue of material fact in dispute, a party must identify

specific facts in the record and cannot rely on general assertions.

Here, [Boghossian] does not identify specific facts in the record

as required, and the facts she does specify as to the Brown’s

alleged influence (Ms. Brown’s power of attorney in 2008 and Mr.

Brown’s legal representation in 2004) neither pertain to the

formation of the Trust, nor do they correspond to the period

when the HKIT was created. As for the accusation that the

Browns are responsible for Ms. Kilijian’s choice to “funnel assets

into the HKIT,” the facts in the record do not support such an

assertion. The only specific actions that [Boghossian] identifies

are not indicative of a confidential relationship and reference a

period significantly later than November 2006, when the trust

was signed.

[Boghossian] has presented no facts which could establish

directly that Ms. Kilijian was unduly influenced by the Browns or

by any other party at the time of the formation of the Trust. On

the contrary, all the evidence concerning the formation of

the HKIT establishes that Ms. Kilijian acted independently

and of her own accord. Ms. Kilijian instructed Michael

Striar, an attorney in Florida, to prepare the Trust, and

she paid for the legal work Mr. Striar performed in setting

up the Trust. See Striar Dep. 18:3-5, 25:7-24, 27:24-28:6.

Based on Mr. Striar’s assessment as well as that of Adam

Karron, Ms. Kilijian’s financial planner, at the time of the creation

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of [the] HKIT, Ms. Kilijian was in full possession of her mental

facilities, she understood the legal and financial implications of

her actions, and she was not in a weakened intellectual state.

See Striar Dep. 26:6-28:6, 32:6-33:14, 33:22-37:11; Karron

Dep. 20:16-21:7, 24:24-26:1. [Boghossian] has presented

no evidence that the Browns were in communication with

Ms. Kilijian about the Trust or guiding her in its structure

or formation, nor that they were in Florida at the time the

HKIT was formed, nor that Mr. Striar was acting under the

Brown’s instructions.

In addition, [the HKIT] in its Motion for Summary

Judgment calls attention to the proximity in time between the

creation of the HKIT on November 21, 2006 and [Boghossian]’s

agreement with Ms. Kilijian on December 15, 2006.

[Boghossian] signed a legal agreement with her Aunt, Ms.

Kilijian, in December of 2006. It is incongruous for

[Boghossian] to assert that Ms. Kilijian had capacity to

sign that Agreement but was of a weakened intellect and

subject to undue influence with regard to the creation of

the HKIT 25 days earlier. The fact that [Boghossian] was

willing to enter into the December 2006 Agreement tends to

support the other evidence that Hilda Kilijian was able to make

her own decisions in November and December 2006.

[Boghossian] has failed to identify any evidence to the contrary.

Because [Boghossian] has failed to point to any evidence

that places at issue a material fact as to whether there was a

confidential relationship between the Browns and Ms. Kilijian, or

whether Hilda Kilijian was of a weakened intellect in 2006, the

burden does not shift to [the HKIT] under Estate of Clark.

[Boghossian] has also failed to present any specific evidence

that could establish directly that the Browns unduly influenced

Hilda Kilijian to create or fund the HKIT.

Orphans’ Court Opinion, 10/10/2013, at 7-10 (emphasis added).

We conclude the orphans’ court judge’s analysis properly addresses

Boghossian’s argument and the law of undue influence. The judge

emphasizes the following: (1) the operable date was November 21, 2006

when the trust was formed; (2) Killijian did not name Brown as her agent

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under a durable power of attorney until June 2008; (3) John Brown’s legal

representation of Kilijian in 2004 was limited to the sale of her home and did

not extend to other financial matters; (4) Kilijian employed Striar as her

attorney and instructed him to draft the trust document; and (5) Boghossian

does not dispute that Kilijian had the capacity to sign a legal agreement with

her in December of 2006, which was only 25 days after the trust was

created. Boghossian’s averments, as provided in her affidavit, go to either

John Brown’s representation in selling Kilijian’s home or subsequent acts

that took place after the trust was formed in 2006. See Affidavit of Lynne

Boghossian, 7/15/2013, at 1-5. Accordingly, we discern no abuse of

discretion and/or error on the part of the orphans’ court in granting

summary judgment in this matter.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2014

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