In Re: J. Robinson Appeal of: D. Graziano ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JAMES W. ROBINSON, AN IN THE SUPERIOR COURT OF
ADJUDICATED INCAPACITATED PERSON, PENNSYLVANIA
NOW DECEASED
APPEAL OF: DOREEN M. GRAZIANO
No. 1302 MDA 2014
Appeal from the Order Entered July 2, 2014
In the Court of Common Pleas of Lackawanna County
Orphans' Court at No(s): 35-2013-4
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 04, 2015
Appellant, Doreen M. Graziano, appeals pro se from the July 2, 2014
order denying her petition to appeal nunc pro tunc from the orphans’ court’s
February 6, 2013 order denying her motion for a preliminary injunction.
After careful review, we affirm.
The orphans’ court summarized the relevant factual and procedural
history of this case as follows.
James W. Robinson, now deceased, was adjudicated
an incapacitated person by [the orphans’ c]ourt on
February [6], 2013 following a hearing on a
[g]uardianship [p]etition which was filed by St.
Mary’s Villa, a nursing facility where Mr. Robinson
was residing. Along with the granting the
[g]uardianship [p]etition, [the orphans’ c]ourt also
denied a [m]otion for [p]reliminary [i]njunction
which was filed by [Appellant on January 29, 2013].
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The [p]reliminary [i]njunction [m]otion was centered
on the circumstance that [Appellant] had entered
into a fee agreement/contract for services with
Susan Rooney and John Justice, adult children of
James W. Robinson. Notwithstanding the dictates of
the contract concerning the work to be performed at
a certain cost, [Appellant] allege[d] that Ms. Rooney
and Mr. Justice accepted her services but then
refused to pay for those services, despite never
having expressed any concern or dissatisfaction
relative to the work performed by her. In the
[p]reliminary [i]njunction [m]otion, [Appellant]
sought to enjoin the payment of legal fees of Mr.
Robinson’s counsel for the guardianship proceeding
as well as counsel for [p]etitioner St. Mary’s Villa
“until settlement of the claim against Defendant and
the Estate of James W. Robinson, filed to Docket No.
12 CV 6016”, which was a lawsuit she had instituted
the previous year for payment for her services.
Orphans’ Court Opinion, 10/22/14, at 1-2. On February 6, 2013, the
orphans’ court entered an order denying Appellant’s motion for a preliminary
injunction. Appellant filed a motion for reconsideration/appeal nunc pro tunc
on March 13, 2013. On April 5, 2013, Appellant filed a notice of appeal from
the February 6, 2013 order, which was docketed in this Court at 620 MDA
2013. On April 18, 2013, the orphans’ court dismissed Appellant’s motion
for reconsideration for want of jurisdiction. Appellant filed a notice of appeal
from that order on April 23, 2013, which was docketed in this Court at 753
MDA 2013. On June 3, 2013, this Court entered an order sua sponte,
quashing Appellant’s appeal at 620 MDA 2013 as untimely filed. Superior
Court Order, 620 MDA 2013, 6/3/13, at 1. Appellant did not file a petition
for allowance of appeal in our Supreme Court. On June 4, 2013, this Court
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entered an order quashing Appellant’s appeal at 753 MDA 2013 as taken
from an unappealable order, “without prejudice to be refiled after the
[orphans’] court rule[d] on the merits of [A]ppellant’s petition to appeal
nunc pro tunc.” Superior Court Order, 753 MDA 2013, 6/4/13, at 1. Again,
Appellant did not file a petition for allowance of appeal with our Supreme
Court.
The record, pertaining to the issues in this appeal, remained dormant
until April 22, 2014, when Appellant filed a new petition for appeal nunc pro
tunc. The orphans’ court conducted a hearing on June 19, 2014, at which
Appellant subpeonaed the current register of wills of Lackawanna County to
testify. On July 2, 2014, the orphans’ court entered an order denying and
dismissing Appellant’s petition for permission to appeal nunc pro tunc. On
July 29, 2014, Appellant filed a timely notice of appeal.1
On appeal, Appellant raises the following issues for our review.
1. Did the [orphans’] court properly apply the
mandates of 20 Pa.C.S.A. [§] 5501 et seq. and
Pa.O.C.R. 14.2 to the [p]etition for
[a]ppointment of a [p]lenary/[p]ermanent
[g]uardian of the [p]erson and [e]state of
James W. Robinson, an alleged incapacitated
person?
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1
The orphans’ court did not order Appellant to file a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The orphans’ court filed its Rule 1925(a) opinion on
October 22, 2014.
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2. Did the [orphans’] court properly apply the law
in denying and dismissing Appellant’s [m]otion
for [p]reliminary [i]njunction?
3. Did the [orphans’] court properly consider all
relevant factors in determining that Appellant
has an adequate remeday [sic] at law for
monetary damages?
Appellant’s Brief at 8.
At the outset, we note that, although Appellant appeals from the
orphans’ court’s July 2, 2014 order, all of Appellant’s issues in her brief
pertain to the merits of the orphans’ court’s February 6, 2013 order, denying
her petition for a preliminary injunction. As noted above, this Court quashed
Appellant’s first appeal from the orphans’ court’s February 6, 2013 order as
untimely filed. Superior Court Order, 620 MDA 2013, 6/3/13, at 1. The
current order on appeal from July 2, 2014, denied Appellant’s motion for
appeal nunc pro tunc. We review an order denying a petition for permission
to appeal nunc pro tunc for an abuse of discretion. Vietri ex rel. Vietri v.
Del. Valley High Sch., 63 A.3d 1281, 1284 (Pa. Super. 2013) (citation
omitted).
Allowance of an appeal nunc pro tunc lies at
the sound discretion of the Trial Judge. More
is required before such an appeal will be
permitted than the mere hardship imposed
upon the appellant if the request is denied. As
a general matter, a Trial Court may grant an
appeal nunc pro tunc when a delay in filing [an
appeal] is caused by extraordinary
circumstances involving fraud or some
breakdown in the court's operation through a
default of its officers. Where an appeal is not
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timely because of non-negligent
circumstances, either as they relate to
appellant or his counsel, and the appeal is filed
within a short time after the appellant or his
counsel learns of and has an opportunity to
address the untimeliness, and the time period
which elapses is of very short duration, and
appellee is not prejudiced by the delay, the
court may allow an appeal nunc pro tunc.
McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super.
1999) (citations omitted). Our Supreme Court has
made it clear that the circumstances occasioning the
failure to file an appeal must not stem from counsel's
negligence or from a failure to anticipate foreseeable
circumstances. Criss v. Wise, 781 A.2d 1156 (Pa.
2001).
In re Adoption of W.R., 823 A.2d 1013, 1015-1016 (Pa. Super. 2003)
(parallel citation omitted).
In this case, the orphans’ court denied Appellant’s petition for
permission to appeal nunc pro tunc. Appellant’s notice of appeal states that
she is appealing the orphans’ court’s July 2, 2014 order denying her petition
for permission to appeal nunc pro tunc. Appellant’s Notice of Appeal,
7/29/14, at 1. However, Appellant’s brief offers no argument as to how the
orphans’ court abused its discretion in denying her petition for permission to
appeal nunc pro tunc. Having failed to raise a question on appeal relative to
the denial of her motion to appeal nunc pro tunc and offered no argument in
her appellate brief, the issue has been waived. See In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure to cite
relevant legal authority constitutes waiver of the claim on appeal[]”)
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(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013). Accordingly, this
Court cannot review any of the issues raised in Appellant’s brief regarding
the orphans’ court’s February 6, 2013 order.
Based on the foregoing, we conclude that we are without jurisdiction
to address the merits of any of the issues raised in Appellant’s brief,
regarding the orphans’ court’s February 6, 2013 order. We further conclude
Appellant has waived any issue in connection with the July 2, 2014 orphans’
court order. Accordingly, the orphans’ court’s July 2, 2014 order denying
Appellant permission to appeal said February 6, 2013 order nunc pro tunc is
affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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