In Re Estate of: Hersh, Q. Appeal of Veronikis, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF QUEEN E. HERSH, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: PENELOPE VERONIKIS
No. 2616 EDA 2015
Appeal from the Order Entered August 3, 2015
in the Court of Common Pleas of Lehigh County
Orphans’ Court at No(s): 2009-102
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 18, 2016
Penelope Veronikis (“Appellant”) appeals from the August 3, 2015
order of the Lehigh County Court of Common Pleas denying her filing entitled
“Appeal Under Section 908 of the Probate, Estates and Fiduciaries Code from
the Grant of Letters of Administration to Permit Probate of Illegally and
Wrongfully Destroyed Will and Issuance of Letters Testamentary to Penelope
Veronikis” (“Probate Appeal”). After careful review, we affirm.
Prior to the summer of 2008, Queen E. Hersh (“Decedent”) appointed
Appellant as her power of attorney and created a will that named Appellant
as the sole beneficiary of her estate. In the summer of 2008, Decedent
discovered Appellant and two other individuals had abused the power of
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attorney, had stolen over $200,000.00, and had placed a $50,000.00
mortgage on Decedent’s home.1 Decedent immediately contacted attorney
Karl F. Longenbach, who, on the direction of Decedent, drafted a revocation
of the power of attorney.
Additionally, Decedent’s then-existing will, dated January 11, 2007
(“the January 2007 Will”), named Appellant as the sole beneficiary.
Attorney Longenbach requested the January 2007 Will from the scrivener,2
who forwarded the original to him in November 2008.
Pursuant to Decedent’s express instruction contained in a letter from
Decedent to Attorney Longenbach, Attorney Longenbach and his paralegal,
Amy Shupp, destroyed the January 2007 Will upon receipt, intending to
accomplish Decedent’s stated desire of revocation of the January 2007 Will.3
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1
Neither Appellant nor the other individuals made any payments on the
mortgage. Decedent became aware of the deception when she received a
mortgage foreclosure complaint filed by a lender regarding the mortgage.
2
Attorney Gary Brienza was the scrivener. Upon receipt of the request,
Attorney Brienza requested a signed release from Decedent. Decedent
complied, and Attorney Brienza forwarded the original January 2007 Will
directly to Attorney Longenbach, as directed.
3
Ms. Shupp accomplished the destruction by tearing the original January
2007 Will in half. Attorney Longenbach’s office retained a photocopy of the
January 2007 Will that indicated it was for informational purposes only, and
that the original had been destroyed in accordance with Decedent’s
instructions.
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On the morning of December 10, 2008, the day she was scheduled to
execute a new will, Decedent suffered a stroke and passed away without
executing the new will. On January 20, 2009, the Lehigh County Register of
Wills filed a decree granting Letters of Administration to Cynthia A. Ciocco
(“Probate Decree”) pursuant to a Petition for Probate and Grant of Letters
filed by Attorney Longenbach.4
In August 2011, following a Grand Jury investigation in the previous
year, police brought criminal charges5 against Appellant based on her
financial exploitation of Decedent for the two year period between the death
of Decedent’s sister (who was Decedent’s caretaker) and Decedent’s
discovery of the defaulted mortgage on her property.6 Ms. Shupp testified
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4
An affidavit filed with the probate petition attested that a proper search
had been performed and that Decedent had died intestate without surviving
heirs.
5
The charges included, inter alia, dealing in the proceeds of illegal activities,
18 Pa.C.S. § 5111(a)(2); theft by unlawful taking, 18 Pa.C.S. § 3921(a);
theft by deception, 18 Pa.C.S. § 3922(a)(1); theft by failure to make
required disposition of funds, 18 Pa.C.S. § 3927(a); and conspiracy to
commit dealing in the proceeds of illegal activities, 18 Pa.C.S. §903(c).
6
Hristos Dimou and Barbara Paxos were Appellant’s co-defendants in the
criminal trial and appeal. The facts of the criminal matter are summarized
as follows: Dimou owned a diner where Decedent’s 80-year old sister, Ella,
who was also Decedent’s caretaker, worked. When Ella became sick, she
expressed concern to Dimou that Decedent would be left without someone to
care for her. Dimou told Ella that he would take care of Decedent. When
Ella died, Dimou put Appellant, his wife, in charge of Decedent’s well-being.
Decedent then gave Appellant a POA and made the January 2007 Will
naming Appellant as the sole beneficiary. Appellant promptly sold one of
(Footnote Continued Next Page)
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and described the manner of the destruction of the January 2007 Will at
Appellant’s preliminary hearing in the criminal matter, which Appellant
attended with counsel.7
On September 11, 2013, Appellant filed the Probate Appeal
challenging the January 20, 2009 Probate Decree. The Probate Appeal
alleged the January 2007 Will had been improperly destroyed, in that it had
been torn apart outside the presence of the testator. Appellant further
requested the lower court probate a photocopy of the January 2007 Will that
named Appellant as Decedent’s sole beneficiary.
Appellant’s criminal trial commenced on October 9, 2013. On October
17, 2013, a jury found Appellant guilty in the criminal case.8
On October 30, 2013, Cynthia A. Ciocco filed her Answer and New
Matter in response to Appellant’s Probate Appeal. The lower court conducted
a hearing and heard argument on the Probate Appeal on November 17, 2014
and December 11, 2014. On March 6, 2015, the lower court entered an
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(Footnote Continued)
Decedent’s properties and used the proceeds for her own ends, chiefly
plastic surgery. Co-defendant Paxos is Appellant’s daughter.
7
The destruction of the January 2007 Will was also described in letters
dated December 16 and December 19, 2008, which were introduced into
evidence at Appellant’s Grand Jury proceedings.
8
On January 9, 2014, the trial court sentenced Appellant to 32 months to 27
years’ incarceration. This Court affirmed Appellant’s and her co-defendants’
judgments of sentence on January 29, 2016. See Commonwealth v.
Veronikis, 2031 EDA 2014 (unpublished memorandum).
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order denying the Probate Appeal as untimely filed and disallowing the
probate record to be opened to permit a photocopy of the January 2007 Will
to be probated.
On March 24, 2015, Appellant filed exceptions to the March 6, 2015
order. The lower court conducted argument on the exceptions on May 18,
2015. On August 3, 2015, the lower court entered a final order denying
Appellant’s exceptions. Appellant filed a timely notice of appeal on August
25, 2015. The trial court filed its Pa.R.A.P. 1925(a) opinion on October 5,
2015.
Appellant raises the following claim for review:
1. Was Appellant[’s] [a]ppeal from the Register of Wills timely
filed under a judicial exception to the time within which to appeal
from grant of Letters of Administration since counsel for the
Administrator knowingly and improperly withheld information
from Appellant [] and the Register of Wills regarding the manner
in which [] [D]ecedent’s Will was “destroyed” by counsel and his
assistant, which actions do not constitute a proper revocation of
[] [D]ecedent’s Will?
Appellant’s Brief, p. 4.
Our scope and standard of review on appeal from a decree of the
Orphans’ Court adjudicating an appeal from probate is as follows:
In a will contest, the hearing judge determines the credibility of
the witnesses. The record is to be reviewed in the light most
favorable to appellee, and review is to be limited to determining
whether the trial court’s findings of fact were based upon legally
competent and sufficient evidence and whether there is an error
of law or abuse of discretion. Only where it appears from a
review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence
may the court’s findings be set aside.
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In re Bosley, 26 A.3d 1104, 1107 (Pa.Super.2011) (internal quotation and
citation omitted).
Appellant claims the lower court erred in determining the Probate
Appeal was untimely. See Appellant’s Brief, pp. 12-18. She is incorrect.
The Probate, Estates and Fiduciaries Code requires that probate
challenges must be commenced within one year, as follows:
§ 908. Appeals
(a) When allowed.--Any party in interest seeking to challenge
the probate of a will or who is otherwise aggrieved by a decree
of the register, or a fiduciary whose estate or trust is so
aggrieved, may appeal therefrom to the court within one year of
the decree: Provided, That the executor designated in an
instrument shall not by virtue of such designation be deemed a
party in interest who may appeal from a decree refusing probate
of it. The court, upon petition of a party in interest, may limit
the time for appeal to three months.
20 Pa.C.S. § 908. One exception exists when an appeal may be taken after
the time fixed by the statute has passed: where a fraud has been
perpetrated upon the Register of Wills. See Dempsey v. Figura, 542 A.2d
1388, 1390-91 (Pa.Super.1988) (“The only situation permitting us to set
aside the statutory period for filing such an appeal occurs in cases where
there has been a fraud on the court or the Register of Wills.”); see also In
re Kirkander’s Estate, 415 A.2d 26, 27 (Pa.1980) (appeal allowed two
years after probate in case of forgery); see also In re Culbertson’s
Estate, 447, 152 A. 540, 543 (Pa.1930) (appeal allowed 12 years after
probate in case of forgery).
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Here, Appellant filed the Probate Appeal on September 11, 2013,
nearly five years after the Register of Wills’ January 20, 2009 decree
granting Attorney Longenbach’s Petition for Probate and Grant of Letters.
Appellant claims, however, that she is excused from the Section 908 one-
year time limitation because Decedent’s January 2007 Will was improperly
revoked. She claims she only learned of the January 2007 Will’s improper
revocation in July of 2013, when her new criminal attorney explained to her
that the January 2007 Will was not destroyed in accordance with the
Probate, Estates and Fiduciaries Code.9 See Appellant’s Brief, p. 9. She
alleges the improper revocation of the January 2007 Will amounts to a fraud
upon the Register of Wills. See id. at 14-18. We do not agree.
Appellant received notice of the circumstances and manner of the
January 2007 Will’s destruction multiple times throughout her protracted
Orphans’ Court and Criminal Court proceedings. First, the method of
destruction was explained in two letters sent between Attorney Longenbach
and the January 2007 Wills’ scrivener in December 2008 describing the
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9
The Probate, Estates and Fiduciary Code requires that, for a will to be
revoked by an act to the document, it must be “burnt, torn, canceled,
obliterated, or destroyed, with the intent and for the purpose of revocation,
by the testator himself or by another person in his presence and by his
express direction.” 20 Pa.C.S. § 2505(3) (emphasis provided). The parties
agree that Attorney Longenbach and his assistant Ms. Shupp improperly
revoked the January 2007 Will by destroying it outside Decedent’s presence,
albeit at her direction, upon receipt of the original from the scrivener.
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destruction of the will, which letters were entered into evidence in the 2010
Grand Jury proceedings against Appellant. Second, the transcript of the
Grand Jury testimony, during which Ms. Shupp testified about the details of
the January 2007 Will’s destruction, was made available to Appellant on
November 1, 2011. Third, Ms. Shupp again testified about the destruction of
the January 2007 Will by herself and Attorney Longenbach outside the
presence of Decedent at Appellant’s December 19, 2011 criminal preliminary
hearing,10 at which Appellant was present. From these disclosures,
Appellant and her counsel either knew, or should have known through the
exercise of reasonable diligence, the circumstances surrounding the
destruction of the January 2007 Will.11
Additionally, Appellant’s argument that neither she nor counsel
recognized the legal significance of Ms. Shupp’s testimony until August
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10
At the December 19, 2011 preliminary hearing, Ms. Shupp testified as
follows:
Q: . . . do you know when you destroyed the [January 2007
W]ill, was it soon after you received it from [the scrivener]?
A: Yes. We received it in the office, Attorney Longenbach and
myself. We made that, we made that notation on it and then we
ripped it in half.
11
This point is validated by the fact that Appellant’s later criminal counsel
actually did discover the circumstances surrounding and legal issues with
the destruction of the January 2007 Will by reviewing the very same
documents in August 2013.
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2013, when she retained a new attorney who reviewed Ms. Shupp’s
testimony, is unpersuasive. As the lower court explained:
At the time of [Decedent’s] death on December 10, 2008,
[Appellant] knew that the January 2007 Will, under which she
was the sole beneficiary, had been “destroyed” in anticipation of
[Decedent’s] intention to write a new will, but that no later dated
will had been offered or admitted to probate. While that
information alone may arguably have been insufficient to
warrant the filing of an appeal from the grant of letters of
administration within one year of the Register of Wills Decree,
when coupled with the information about the manner of the
January 2007 Will’s destruction which was available to her in
December 2011 [following her criminal preliminary hearing],
[Appellant] had sufficient information upon which to take action
by filing an appeal. However, despite this information,
[Appellant] did not file her appeal until September 2013, almost
two years after she could have done so. This [c]ourt remains
convinced that [Appellant’s] failure to challenge the issuance of
letters of administration and seek to probate a photocopy of the
January 2007 Will until September[] 2013 cannot be excused
due to claimed ignorance of the legal significance of information
available to her and her lawyers in December[] 2011.
1925(a) Opinion, pp. 3-4.
Finally, the trial court found unpersuasive Appellant’s argument that
Attorney Longenbach’s filings in the Register of Will amounted to fraud. As
the lower court explained:
Moreover, [Appellant’s] contention that Attorney Longenbach’s
filing of a petition for letters of administration alleging that
[Decedent] died intestate constituted a fraud upon the Register
of Wills sufficient to extend the period during which an appeal
can be filed pursuant to § 908 is not persuasive. Rather, we find
that Attorney Longenbach was similarly unaware that the
manner in which he and his paralegal destroyed the January
2007 [W]ill was not statutorily compliant.
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1925(a) Opinion, p. 4 (internal citation omitted). The lower court did not err
in so finding.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
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