Estate of: Whitby, P., Appeal of: LaRocca, R. ( 2019 )

J-A27030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF PETER S. WHITBY IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
APPEAL OF: ROBERTA LAROCCA
No. 561 EDA 2018
Appeal from the Order Dated January 19, 2018
In the Court of Common Pleas of Montgomery County
Orphans' Court at No: 2011-X3807
BEFORE: BOWES, and STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 22, 2019
Appellant, Roberta LaRocca, appeals pro se from the January 19, 2018
order assessing surcharges against Appellant and her husband, Richard
LaRocca (“Richard”), and imposing a constructive trust on property located at
78 West Indian Lane, Norristown, Montgomery County, Pennsylvania. We
affirm.
Appellant and Richard engaged in an elaborate scheme to
misappropriate funds from the decedent, Appellant’s stepfather Peter S.
Whitby (“Peter”). The record reflects that the couple misappropriated nearly
$1.5 million from Peter and spent it on lavish renovations to their home. The
trial court recited the pertinent facts:
Peter S. Whitby (hereinafter “Peter”) was in declining health
and having difficulty managing his affairs when he named his
step-daughter, [Appellant] and her then-husband Richard
J-A27030-18
LaRocca as co-agents under a power of attorney signed on July
11, 2006.
After the death of Peter on October 11, 2002, his son,
Kenneth Whitby (hereinafter “Kenneth”), one of the co-executors
of his estate, sought an order compelling [Appellant] and Richard
to file an account with respect to their handling of Peter’s assets.
The former co-agents failed to file an account in accordance with
the court’s order dated June 6, 2012. On November 2, 2012, the
court held both [Appellant] and Richard in contempt of that order.
[***]
There is more to be said about the procedural history of this
matter. However, it is important to note at the outset that, during
the course of this lengthy litigation initiated by Kenneth against
[Appellant] and Richard, Roberta filed for divorce in the
Montgomery County Court of Common Pleas, without assistance
of counsel. Less than a year later, a judge of the Family Division
granted the divorce and approved a property settlement
agreement in which Richard agreed to transfer title to all of the
real estate owned by the couple to [Appellant’s] sole name. Thus,
[Appellant] and Richard agreed effectively to render Richard
judgment-proof, and to have another division of this court
approve the retitling of their home. This action contravened the
order entered by the Honorable Stanley R. Ott on January 10,
2014, which enjoined the transfer of the assets they owned
pending the resolution of this litigation. In his testimony before
the undersigned, Richard acknowledged that the marital
settlement agreement regarding the ownership of their real
property was signed after the date of Judge Ott’s order. Richard
also agreed that, despite the express terms of the marital property
agreement, he and [Appellant] had a ‘side agreement’ regarding
the ultimate distribution of certain of their assets, which he did
not explain.
[***]
This court does not find credible or particularly relevant
[Appellant’s] explanation that, although she allows Richard to stay
in the home, they are not husband and wife. More believable and
congruous is a scenario whereby the parties obtained a sham
divorce by proceeding pro se and entered into a sham property
agreement while deliberately misleading the court and opposing
-2-
J-A27030-18
counsel for months regarding the fact that Richard continued to
live in the marital home.
[***]
Kenneth, Kay [Peter’s wife] and [Appellant] reached a
stipulation that was filed with the court on January 8, 2016,
regarding many of the relevant facts. By the start of the hearing,
Richard, who was representing himself, had not agreed to the
stipulation. However, during the hearings, Richard did agree and
the stipulation was made a part of the record and introduced into
evidence as Exhibit RO-32. The facts as stipulated are as follows:
 Peter died on January 5, 2011. He was survived by
Kay, his wife of 27 years, and by five other children
from a prior marriage. Peter’s daughter, Elizabeth,
renounced her right to serve as executrix of his estate.
On May 20, 2011, Kenneth and Kay qualified as
executors and received letters testamentary.
 Peter married Kay on June 4, 1983. Kay’s children
from her prior marriage include her daughter,
[Appellant]. [Appellant] was married to Richard in
1986.
 Peter and Kay resided at Shannondell at Valley Forge
(“Shannondell”), an assisted care facility located in
Eagleville, Montgomery County, from early 2005 until
Peter’s death in 2011.
 On May 2, 2006, [Appellant] became Peter’s agent
under a limited power of attorney to conduct certain
business for him related to litigation over Peter’s
interest in real property in Glenside known as ‘Roberts
Block.’
 On July 7, 2006, [Appellant] emailed attorney James
Walker from the law firm of Hamburg Rubin Mullin
Maxwell & Lupin (hereinafter ‘Hamburg Rubin’) that
‘Rich and I will act as co-attorneys for Pete.’ On July
11, 2006, Peter signed a durable general power of
attorney appointing [Appellant] and Richard as his
agents.
-3-
J-A27030-18
 As of July 11, 2006, Peter’s and Kay’s assets included,
inter alia:
o A brokerage account at AG Edwards held in
Peter’s name alone which then was valued at
approximately $665,960.07;
o An IRA and a SEP IRA held at Raymond James
in Peter’s name alone but of which Peter named
Kay the sole beneficiary upon his death and
which had a combined value of roughly
$589,171;
o A ‘Gold Checking’ account at Citizens Bank titled
in Peter’s and Kay’s names as joint tenants with
rights of survivorship, which had a value of
approximately $27,997.00.
o A Citizens Bank money market account titled in
Peter’s and Kay’s names as joint tenants with
rights of survivorship which had a value of
approximately $79,177.00; and
o An interest as mortgagee (in Peter’s name only)
in the Roberts Block property.
 On July 14, 2006, represented by Hamburg Rubin and
with [Appellant] acting as his agent, Peter began
mortgage foreclosure proceedings related to the
Roberts Block property. [Appellant] verified the
foreclosure complaint as agent. In this fiduciary
capacity, [Appellant] also verified Peter’s reply to new
matter and counterclaim on October 13, 2006. In
addition to the mortgage foreclosure actions,
[Appellant] also acted as agent for Peter with respect
to obtaining fire insurance and pursuing a claim
following an August 2006 fire at the Roberts Block
property. The Roberts Block litigation included three
separate civil actions filed in the Court of Common
Pleas of Montgomery County, Civil Division, at docket
nos. 2006-20490, 2007-03112, and 2008-11763. On
November 1, 2006, [Appellant] as ‘P.O.A. for Peter
Whitby’ signed a ‘Sworn Statement and Proof of Loss’
relating to the fire claim. On November 6, 2006,
[Appellant] submitted to an examination under oath
-4-
J-A27030-18
in connection with the claim. [Appellant] eventually
consented to a settlement on behalf of Peter which
resulted in the following payments:
 A check for $253,463.38 which Hamburg Rubin
delivered to Richard on April 24, 2007, and which
Richard deposited into Peter’s and Kay’s joint account
at Citizen’s Bank; and
 A check for $151,996 which Richard deposited into
Peter’s and Kay’s joint account at Citizens Bank on
December 11, 2008.
The stipulation set forth the following with regard to
transfers from accounts in Peter’s sole name and from those in
joint names with Kay:
 Between January 10, 2007 and February 25, 2008,
$682,404.84 was transferred from Peter’s AG
Edwards account in to Peter’s and Kay’s joint accounts
at Citizens Bank.
 Between November 13, 2007 and October 20, 2008,
$555, 657.21 was transferred from Peter’s Raymond
James IRAs to Peter’s and Kay’s joint accounts at
Citizens Banks.
 Beginning in July 2006, substantial amounts were
transferred from Peter’s and Kay’s joint accounts at
Citizens Bank to Citizens Bank accounts ending in the
numbers 3731 and 3723 in the name of Richard
LaRocca.
 [Appellant’s] signature, either in her individual
capacity or as agent for Peter, does not appear on any
checks or withdrawal slips used to effectuate the
transfers from the Whitbys’ joint account to the
accounts ending in numbers 3731 and 3723.
 In addition to her involvement as agent for Peter in
the Roberts Block civil actions, [Appellant] began
signing checks payable to Peter’s health care and
assisted care providers, as his agent on April 26,
2010. (That the checks that [Appellant] as agent
wrote to the health care aides and care providers were
-5-
J-A27030-18
for Peter’s benefit is not disputed and these checks
are not at issue in this litigation).
The objectants assert, and Richard does not deny, that after
a copy of the power of attorney was provided to the investment
advisors, Richard transferred Peter’s investment funds to a joint
account of Peter and [his wife] at Citizens Bank. There is no
dispute that Richard also deposited into the Whitbys’ account to
two checks received with respect to the fire insurance litigation.
As stipulated by the parties, and acknowledged by Richard, the
transfers from assets belonging solely to Peter into the Whitbys’
joint account totaled $1,642,521.43 between January 1, 2007 and
December 11, 2008.
These transfers made by Richard as agent may be referred
to as ‘step one’ of the scheme. Although the monies were
transferred to a joint account of Peter and Kay, in which Richard
and [Appellant] had no interest, the transfers are significant. It
was established that Richard thereafter made the ‘substantial’
transfers from the Whitbys’ joint accounts at Citizens Bank to his
own accounts at Citizens Bank using his online profile. Richard’s
evasiveness and equivocation were evident in his attempt to deny
that he made these transfers ‘under the power of attorney.’ [….]
Richard directed the bank statements to be addressed to Peter but
sent to 79 West Indian Lane, an address that [Appellant] used to
receive mail but at which she advised that she did not reside. As
a result of presenting himself to Citizens Bank as a fiduciary for
Peter, Richard gained the authority to make transfers from these
joint accounts, and exercised it, primarily, by logging in online.
These online transfers may be considered ‘step-two’ of the
scheme.
From January 2007 through February 2009, Richard took a
total of $902,860.27 of Peter’s funds from his joint accounts at
Citizens Bank and placed the money in two Citizens Bank accounts
in his own name[….]
From August 2007 through November 2010, Richard
transferred at least an additional $592,200 of Peter’s funds into
his own accounts[….] Although counsel for the objectants assert
that the total is even higher, there is no dispute that the bank
records reflect transfers by Richard into accounts in his own name
in the total amount of $1,432,060.27.
[***]
-6-
J-A27030-18
Richard, having misappropriated Peter’s funds, next
engaged in ‘step three’ of the scheme—using the funds for his and
[Appellant’s] extravagant home renovations in an effort to conceal
his ill-gotten gains and defeat any party who would seek to
recover Peter’s funds. Richard used the funds in his bank accounts
to spend more than $1 million on contractors and materials related
to improvements at his and [Appellant’s] home at 78 West Indian
Lane over a period of two and a half years from September 2006
through March of 2009.
Finally, in ‘step four’ of the scheme, [Appellant] and Richard
agreed to a sham divorce and to impoverish Richard by
transferring their property to [Appellant] as part of their strategy
to divest Richard of any assets that would otherwise be available
to repay Peter’s estate.
Trial Court Opinion, 1/19/18, at 1-10 (record citations omitted).
After the November 2, 2012 order holding Appellant and Richard in
contempt, the orphans’ court directed them to file an account on or before
January 20, 2013. They failed to meet that deadline, but Richard filed an
account on May 3, 2013, and Appellant filed an account on May 6, 2013. On
January 10, 2014, the orphans’ court filed an order forbidding Appellant and
Richard to transfer any assets pending the outcome of this action. Appellant
and Richard violated that order in their 2015 divorce proceedings. Kenneth
filed objections to Appellant’s account on June 28, 2013, and Kenneth and Kay
filed supplemental objections to Appellant’s account on August 31, 2016.1 The
orphans’ court held nine days of hearings in December of 2016 and January
of 2017.
____________________________________________
1 The matter apparently was drawn out by Appellant’s and Richard’s failure
to cooperate with various discovery requests.
-7-
J-A27030-18
Appellant’s pro se brief contains only her own self-serving account of
the facts. She blames Richard for the wrongdoing and claims she was unaware
of his activities. Appellant cites no law in support of her appellate arguments,
and, for that reason alone, she cannot obtain relief on this appeal. In re R.D.,
44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012)
(“We will not act as counsel and will not develop arguments on behalf of an
appellant. Moreover, when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.”).
Even were we to consider the merits, Appellant could not obtain relief.
The governing standard is well settled:
When an appellant challenges a decree entered by the
[o]rphans’ [c]ourt, our standard of review requires that we be
deferential to the findings of the [o]rphans’ [c]ourt.
[We] must determine whether the record is free from legal
error and the court’s factual findings are supported by the
evidence. Because the [o]rphans’ [c]ourt 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
that discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of
law on which the court relied are palpably wrong or clearly
inapplicable, we will reverse the court’s decree.
In re Staico, 143 A.3d 983, 987 (Pa. Super. 2016) (internal citations and
quotation marks omitted), appeal denied, 166 A.3d 1221 (Pa. 2017).
The evidence, as set forth extensively above, overwhelmingly refutes
Appellant’s assertion that she was unaware of Richard’s misappropriation of
-8-
J-A27030-18
funds. In addition to the facts described above, we observe that Richard had
been unemployed since 2004. Despite this, Appellant claims she did not
question where Richard got the funds to pay for a seven-figure renovation to
their home.
Because Appellant has not developed a legal argument, and because the
record overwhelmingly fails to support her account of the facts, we affirm the
orphans’ court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
-9-