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March 16, 2026 Get Citation Alerts Download PDF Add Note

Tate, W. v. Graham, B.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1716 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Dubow

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

                        by Dubow

J-S44025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

WARNER TATE, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF NANCY BEVERLY : PENNSYLVANIA
JOHNSON, DECEASED :
:
Appellant :
:
:
v. :
: No. 1716 EDA 2025
:
BEVERLY GRAHAM :

Appeal from the Judgment Entered September 18, 2025
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 240202177

BEFORE: LAZARUS, P.J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 16, 2026

Appellant, Warner Tate, Administrator of the Estate of Nancy Beverly

Johnson, appeals from the September 18, 2025 judgment entered in the

Philadelphia County Court of Common Pleas in favor of Appellee, Beverly

Graham, rejecting Appellant’s fraud claim. Appellant challenges the court’s

exclusion of certain medical records and related documents. After careful

review, we affirm.

This case involves the estate of Nancy Beverly Johnson (“Decedent”),

the mother of Appellant and Appellee. The following are the relevant facts, as

found by the trial court following a bench trial.

Decedent resided at 2408 Chadwick Steet in Philadelphia (“the

Property”). Appellee claimed to have been Decedent’s primary caretaker in

her later years, during which time she took Decedent to doctor’s appointments
J-S44025-25

at Temple University Hospital. Appellee “maintain[ed] that [Decedent] was

never diagnosed with dementia or any related disease” at Temple University

Hospital and that Decedent was “overall relatively self-sufficient and mentally

competent.” Trial Ct. Op. 8/26/25, at 2.

In February 2018, Decedent went to live with another son, Marlow Tate,

in North Carolina. The move occurred after “several incidents where

[D]ecedent wandered off alone, walking many miles in perilous weather

conditions without proper clothing[,]” which Appellant contended resulted

from Appellee’s neglect. Id. at 2. Appellant claimed that Decedent received

a dementia diagnosis from Atrium Health in North Carolina. Id.

In June 2018, Decedent returned to Philadelphia “and resumed her

normal routine with Appellee — which included continuing the medical

treatment plans prescribed by Temple University Hospital, rather than Atrium

Health.” Id. In March 2020, Decedent deeded the Property to Appellee. Id.

“Appellee was also listed as [D]ecedent’s power of attorney and life insurance

beneficiary[.]” Id.

On February 14, 2023, Decedent passed away intestate. Subsequently,

the Register’s Office granted letters of administration to Appellant.

In February 2024, Appellant, as administrator of the estate, initiated the

instant litigation, claiming that Appellee “committed theft of estate assets

through misrepresentation, fraud and criminal activity[.]” Compl., 2/20/24,

at ¶ 5. He averred that Decedent had been “totally mentally incapacitated

and physically frail” between 2018-2023. Id. at ¶ 13. He claimed that,

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J-S44025-25

despite Decedent’s dementia, Appellee caused Decedent to transfer the

Property into Appellee’s name, withdrew “in excess of $10,000” during

Decedent’s lifetime, purchased life insurance for Decedent naming Appellee as

the beneficiary, “changed the beneficiary designation on other life insurance

owned by [D]ecedent[,]” and, following her death, closed Decedent’s bank

account and took possession of nearly $11,000. Id.

During the May 27, 2025 bench trial, Appellant presented testimony

from Appellee as a hostile witness, as well as testimony from himself, Marlow

Tate, and Samuel Johnson, Decedent’s widower. Relevantly, Appellant sought

to introduce medical records from Atrium Health. N.T., 5/27/25, at 17.

Appellee objected to the admission as inadmissible hearsay. Appellant

claimed that the parties had stipulated to the documents’ admission.

Appellee’s counsel, however, denied stipulating to the admission, stating that

“[t]here was some miscommunication regarding the stipulation.” Id. at 18.

The court sustained the objection.

On June 2, 2025, the court entered an order in favor of Appellee,

concluding that “Appellee did not fraudulently transfer assets from [D]ecedent

to herself.” Trial Ct. Op. at 1.

On June 10, 2025, Appellant filed a post-trial motion seeking “a new

trial where all applicable medical records are admissible[.]” Post-Trial Motion,

6/10/25. The court denied the motion without opinion on June 16, 2025.

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J-S44025-25

On June 30, 2025, Appellant filed a timely notice of appeal. 1 Appellant

and the court complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Did the Court commit an error of law and/or abuse its discretion
by (1) sustaining the objection of [Appellee] to Appellant’s
presentation of a written stipulation and email correspondence
between Appellant and Appellee regarding the introduction of
certain medical records as evidence, along with the said medical
records themselves; (2) failing to consider the said written
stipulation and email correspondence regarding the said medical
records; and (3) improperly excluding the said medical records as
evidence?

Appellant’s Br. at 4.

It is well-established that decisions regarding the admissibility of

evidence “are within the sound discretion of the trial court and will not be

overturned absent an abuse of discretion or misapplication of law.” U.S.

Bank, N.A. v. Pautenis, 118 A.3d 386, 391 (Pa. Super. 2015) (citation

omitted). Moreover, to constitute reversible error, an evidentiary ruling “must

have been harmful or prejudicial to the complaining party.” Id. (citation

omitted).

In this case, the trial court excluded the relevant records based upon

the rule against hearsay. “The Pennsylvania Rules of Evidence define

‘hearsay’ as an out of court statement offered in court for the truth of the

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1 After noticing the absence of a judgment on the docket, this Court ordered

Appellant to praecipe the trial court to enter judgment, which occurred on
September 18, 2025. Accordingly, we deem the notice of appeal timely. See
Pa.R.A.P. 905 (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).

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J-S44025-25

matter asserted.” MB Financial Bank v. Rao, 201 A.3d 784, 788 (Pa. Super.

2018); see also Pa.R.E. 801(c). “Generally, hearsay is inadmissible at trial

unless it falls under an exception provided by the Rules.” MB Financial Bank,

201 A.3d at 788; see also Pa.R.E. 802.

In the first portion of Appellant’s issue, he claims that the trial court

should have admitted the Atrium Health records based upon an alleged

“stipulation” between Appellant and Appellee regarding the admissibility of the

records. Appellant’s Br. at 6-7, 11. Appellant relies upon email

correspondence between counsel, which Appellant provided to the trial court

as evidence of a stipulation.

We conclude that the trial court did not abuse its discretion in refusing

to accept an unsigned stipulation to which Appellee’s counsel expressly denied

agreement. N.T. at 17-18. The court explained that it refused to accept

Appellant’s counsel’s “vague and one-sided” emails as evidence of a

stipulation.2 Trial Ct. Op. at 8-9. The record supports the court’s conclusion

that Appellant failed to present a valid stipulation.

In the alternative, Appellant invokes the medical treatment and business

records exceptions to the rule against hearsay. Appellant’s Br. at 9-11. The

---

2 Appellant asserted that Appellee’s counsel’s failure to respond to the
following demonstrated consent to the stipulation: “I haven't heard from you
regarding the stipulation. If I don't hear from you by Friday, April 9, 2025, I
will assume that you agree and present it as such to the court.” Appellant’s
Post-Sentence Motion, Exhibit A.

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J-S44025-25

exception for “statements made for medical diagnosis or treatment” provides

for the admissibility of a statement that:

(A) is made for—and is reasonably pertinent to—medical
treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof, insofar as reasonably pertinent to
treatment, or diagnosis in contemplation of treatment.

Pa.R.E. 803(4). Stated succinctly, “[a] party may introduce medical records

as evidence of facts contained therein without producing the person who made

the notation in the record or the records custodian.” Turner v. Valley Hous.

Dev. Corp., 972 A.2d 531, 537 (Pa. Super. 2009) (citation omitted). While

“[m]edical records are admissible under the hearsay rules as evidence of facts

contained therein[,]” they are not admissible “as evidence of medical opinion

or diagnosis.” Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 1055 (Pa.

Super. 2005).

The business record exception permits the admission of a record of an

event, act, or condition if the following criteria are met:

(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted
activity of a “business”, . . .

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and

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J-S44025-25

(E) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6). A qualified witness is one that can “provide sufficient

information relating to the preparation and maintenance of the records to

justify a presumption of trustworthiness.” Commonwealth v. Smith, __

A.3d __, 2026 WL 112074, *19 (Pa. Super. filed Jan. 15, 2026) (citation

omitted).

Appellant claims that the court abused its discretion in excluding the

Atrium Health records, which he sought to introduce to demonstrate that

Decedent suffered from dementia and lacked the capacity to execute the

relevant legal documents. Appellant’s Br. at 9-11. Appellant relies upon

Turner, supra, for the proposition that “[r]ecords created by medical

professionals in the regular course of diagnosis or treatment are admissible

under Pa.R.E. 803(6) when properly authenticated, even if the authoring

provider is unavailable to testify[.]” Appellant’s Br. at 10.

We conclude that Turner does not support Appellant’s argument. In

Turner, the proponent of the medical records sought to introduce them not

as evidence of a medical diagnosis but to demonstrate the factual issue of the

location of the decedent’s fall. Turner, 972 A.2d at 538. This Court held that

the factual statements describing the location of the fall were admissible

because they related to “the nature and type of injury” suffered, which was

pertinent to medical diagnosis and treatment. Id. In finding these statements

admissible, this Court reiterated that “[m]edical records are admissible under

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J-S44025-25

the hearsay rules as evidence of facts contained therein but not as evidence

of medical opinion or diagnosis.” Id. at 537.

In contrast to Turner, Appellant sought to introduce the medical records

as evidence of Decedent’s alleged dementia diagnosis, which the trial court

correctly recognized as “precisely the type of evidence required to be

introduced via expert medical testimony, not through lay witness hearsay

testimony.” Trial Ct. Op. at 7-8. Thus, the trial court properly rejected

application of the medical treatment exception. Additionally, Appellant did not

satisfy the business records exception as he did not offer any “qualified

witness” to satisfy the requirements of Rule 803(6).

Finally, Appellant challenges the trial court’s refusal to take “judicial

notice of the progressive nature of dementia,” asserting that courts “routinely

take judicial notice of medical or scientific facts that are widely accepted and

verifiable.” Appellant’s Br. at 11-12. The Rules of Evidence provide that a

court “may judicially notice a fact that is not subject to reasonable dispute

because it: (1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Pa.R.E. 201(b).

Moreover, the court “must take judicial notice if a party requests it and the

court is supplied with the necessary information.” Pa.R.E. 201(c)(2).

We find Appellant’s argument meritless. First, the “progressive nature

of dementia” is irrelevant in the absence of a dementia diagnosis, which the

parties disputed. Second, the trial court properly refused to take judicial

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J-S44025-25

notice relating to dementia, opining that “medical knowledge, symptoms, and

effects are well outside the purview of the court and facts of which it can take

judicial notice.”3 Trial Ct. Op. at 12. Appellant’s argument fails to convince

us that the trial court abused its discretion in rendering its evidentiary rulings.

Thus, after careful consideration, we affirm the judgment as none of

Appellant’s issues warrant relief.

Judgment affirmed.

Date: 3/16/2026

---

3 Moreover, as the trial court observed, this claim also fails because Appellant

did not request that the court take judicial notice during trial. Trial Ct. Op. at
10 (citing Pa.R.E. 201(c)(2)).

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