In Re: Dell-Aquila, K., Appeal of: Alzheimer's ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: KATHLEEN H. DELL'AQUILA, : IN THE SUPERIOR COURT OF
AN INCAPACITATED PERSON : PENNSYLVANIA
:
:
APPEAL OF: ALZHEIMER'S :
FOUNDATION OF AMERICA, INC. :
AND DAVID H. DELL'AQUILA, AS THE :
EXECUTOR OF THE ESTATE OF :
LOUIS DELL'AQUILA : No. 173 WDA 2019
Appeal from the Order Entered January 9, 2019
In the Court of Common Pleas of Allegheny County Orphans' Court at
No(s): 5073 of 2017
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 27, 2020
This case is an appeal from an order of the Orphans’ Court directing the
clerk of the civil division to transfer a civil action to the Orphans’ Court, and
ordering the Orphans’ Court clerk to dismiss the civil case. We quash the
appeal as interlocutory.
In September 2017, the Orphans’ Court found Kathleen H. Dell’Aquila
(“Kathleen”) to be an incapacitated person and appointed her daughter Lillian
Cannon as emergency plenary guardian (“Guardian”). Kathleen has
Alzheimer’s disease.1 The order also prevented the sale or disposition of
Kathleen’s assets, including property in which she had a marital interest:
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* Retired Senior Judge assigned to the Superior Court.
1 See Appellants’ Br., Ex. B., In re Estate of Louis Dell’Aquila, No.
17P1725, slip op. at 2 (Tenn. Ct. Apps. filed 1/25/2019).
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There shall be no sale or disposition by any person or entity
of Kathleen H. Dell’Aquila’s assets, real estate, and/or
personality including but not limited to property in which
Kathleen H. Dell’Aquila holds a title interest or a marital
interest (as defined by the Pennsylvania Divorce Code). . . .
Order, 9/7/17.
Around the same time, Kathleen’s husband, Louis Dell’Aquila (“Louis”),
changed the beneficiary designation of a $105,000 life insurance policy to give
the Alzheimer’s Foundation of America, Inc., (“Alzheimer’s Foundation”) two-
thirds of the proceeds, or $69,500.2 The sole beneficiary of the insurance
policy had been Kathleen. Under the change, she would now receive one-third.
Louis died a few weeks after effecting the change, on October 2, 2017.
Since then, Guardian and the executor of Louis’s estate, his son David
Dell’Aquila (“David”), who is Kathleen’s stepson, have engaged in litigation in
Orphans’ Court over the insurance proceeds. Guardian filed a motion in
Orphans’ Court in May 2018, seeking to enforce the order barring sale or
disposition of Kathleen’s assets, and asking the court to declare the change of
beneficiary designation void. The trial court granted the motion in June 2018
and ordered that the proceeds of the life insurance policy be paid to Guardian.
David moved to vacate the order due to lack of service and a motion for
sanctions on behalf of Louis’s estate. In September 2018, the trial court denied
the motion, finding the designation was void as a matter of law and David
lacked standing to contest the validity of the designation.
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2 See Letter dated Nov. 13, 2018, from counsel for the Alzheimer’s Foundation
to counsel for Kathleen, Ex. A. to Appellee’s Motion to Quash Appellant’s
Appeal for Want of Appellate Jurisdiction.
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David’s counsel then sent Guardian a letter in November 2018 stating
that he represented the Alzheimer’s Association in connection with the life
insurance policy. The letter demanded that Guardian pay the Alzheimer’s
Foundation the $69,500 it claimed it was owed, and stated that if Guardian
failed to do so, the Alzheimer’s Foundation would “resolve this matter in the
courts.”
Guardian returned to the Orphans’ Court for relief. She moved to enjoin
David’s counsel from further action “in connection with this guardianship.” She
contended that counsel’s representation of both David and the Alzheimer’s
Foundation constituted a non-waiveable conflict of interest and that the
Alzheimer’s Foundation was collaterally estopped from challenging the
beneficiary designation. Following argument, the Orphans’ Court entered an
order in November 2018 allowing 45 days for discovery and directing the
parties to file further briefs on the motion. To date, the court has not ruled on
the motion to enjoin.
Approximately two weeks later, the Alzheimer’s Foundation,
represented by David’s Orphans’ Court attorney, filed the Complaint instituting
the civil action. The Complaint claimed conversion of the insurance proceeds
and named two defendants: Guardian, both in her individual capacity and as
Kathleen’s guardian, and Guardian’s counsel in the Orphans’ Court litigation.
Guardian and her counsel moved in civil court to transfer the civil action to
Orphans’ Court. The Alzheimer’s Foundation did not oppose the motion.
Appellants’ Br. at 14. The civil division granted the transfer.
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In the meanwhile, in Orphans’ Court, David filed a motion to quash a
subpoena that Guardian had served on the Alzheimer’s Foundation. David
maintained that no lawyer had entered an appearance in the Orphans’ Court
matter on behalf of the Alzheimer’s Foundation. He pointed out that rather
than doing so, the Alzheimer’s Foundation had filed the separate civil action.
The Orphans’ Court denied the motion, but directed the transfer and dismissal
of the civil action. Order, filed Jan. 9, 2019. The order the court signed was
drafted by Guardian; the court had crossed out Guardian’s proposed language
enjoining David’s counsel from pursuing further action against Appellees on
behalf of the Alzheimer’s Foundation or David.
Appellants, David and the Alzheimer’s Foundation, filed this appeal. The
trial court explained in its Pa.R.A.P. 1925(a) opinion that the transfer and
dismissal of the civil action occurred because the two matters were “so similar
and so intertwined that one judge should handle both . . . .” Orphans’ Court
Opinion, filed Aug. 29, 2019, at 3-4. The court further pointed out that the
civil action “involve[d] all of the same issues and nuances” as those already
at issue in the Orphans’ Court litigation, and “the parties were engaged in the
discovery process on those very issues . . . .” Id.
We do not address the issues Appellants seek to raise in this appeal
because we do not have jurisdiction over this appeal. Appellants claim that
our jurisdiction is proper because the order at issue – the order dismissing the
civil complaint – was a final order. Appellants’ Br. at 1. They maintain it was
final because the dismissal was not explicitly without prejudice, and the
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Guardian’s counsel intended that the dismissal put the Alzheimer’s Foundation
out of Court. Appellants’ Response to Motion of Lillian Cannon to Quash Appeal
at 7.
Orphans’ court orders are appealable, in addition to certain categories
not at issue here, if they are final orders. See Pa.R.A.P. 341, 342(a)(8). A
final order is one that “disposes of all claims and of all parties . . . .” Pa.R.A.P.
341(b)(1). To determine whether an order is final, we “look beyond the
technical effects of the adjudication to its practical ramifications.” Lustig v.
Lustig, 652 A.2d 393, 394 (Pa.Super. 1995).3 An order dismissing a complaint
without prejudice is not final. Mier v. Stewart, 683 A.2d 930, 930 (Pa.Super.
1996) (“[f]or finality to occur, the trial court must dismiss with prejudice the
complaint in full”).
We find guidance in our decision in Lustig. There, the trial court
dismissed an action with the recommendation that the plaintiff file the case in
the equity division, and the plaintiff, in fact, filed suit in the equity division.
652 A.2d at 394. We concluded that the order was not final because,
consistent with Rule 341, the order did not dispose of all claims and all parties.
Although the order dismissed the claim at law and did not explicitly do so
without prejudice, we explained that such was its practical effect, as the intent
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3See also Ross v. Cousin's Supermarkets, Inc., No. 883 EDA 2019, 2019
WL 7372738, at *2 (Pa.Super. Dec. 31, 2019) (unpub. mem.); U.S. Bank
N.A. v. Manu, 207 A.3d 415, 421 (Pa.Cmwlth. 2019), appeal denied, 223
A.3d 246 (Pa. 2020).
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was simply to move all claims into the equity division. Lustig, 352 A.2d at
395.
Similarly, here, although the court did not state that the complaint was
dismissed without prejudice, such a disposition is implied in the order. That is
the implication of the Orphans’ Court’s statement that it dismissed the civil
action because “the same issues and nuances” were already at issue in the
Orphans’ Court litigation. See Gutman v. Giordano, 557 A.2d 782, 784
(Pa.Super. 1989) (concluding that order was “without prejudice” even though
order did not explicitly include those words, where trial court did not treat it
as “with prejudice”). The Orphans’ Court’s characterization of the two cases
as involving the “same issues and nuances” is apt, as the point of both the
conversion claims and the Orphans’ Court litigation is to determine the rightful
entitlement to the insurance proceeds. As we conclude that the dismissal was
in effect without prejudice, the order was not final. See Mier, 683 A.2d at
930.
Furthermore, the order did not dispose of all claims and all parties.
Although the court did not formally consolidate the two cases, the practical
effect was to put the “issues and nuances” before a single judge in the
Orphans’ Court. Appellants in effect have conceded the consolidation by
captions of both cases on their brief, and by including the Alzheimer’s
Foundation as an appellant in the appeal of the Orphans’ Court order. Because
the court has not yet ruled on the motion to enjoin counsel from further action
in regards to the guardianship matter. There are thus still claims and parties
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pending below, and the order on appeal is not final. We therefore must quash
this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2020
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