Pwr of Atty of Carol Caples, Appeal of: Caples, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: POWER OF ATTORNEY OF : IN THE SUPERIOR COURT OF
CAROLE LEE CAPLES : PENNSYLVANIA
:
:
APPEAL OF: CAROLE LEE CAPLES, :
THE PRINCIPAL ABOVE NAMED, BY :
AND THROUGH HER AGENTS, :
CHRISTINE J. CULLEN AND :
KIMBERLY D’ALESSANDRO : No. 1802 EDA 2020
Appeal from the Order Entered August 20, 2020
In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
No. 2019-0897
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 16, 2021
Appellant, Carole Lee Caples (“Ms. Caples”), by and through her agents,
Christine J. Cullen (“Ms. Cullen”) and Kimberly D’Alessandro (“Ms.
D’Alessandro”), appeals from the orphans’ court’s August 20, 2020 order
granting a petition filed by Appellee, Katherine M. Purcell (“Ms. Purcell”), to
dismiss Ms. Caples’ “Objections to Respondent Katherine M. Purcell’s
Accounting dated August 30, 2019” (“Objections to Accounting”), and Ms.
Caples’ “Petition for Respondent Katherine M. Purcell’s Breach of Fiduciary
Duties as Agent for Carole Lee Caples filed June 25, 2020 by Katherine M.
Purcell” (“Petition for Breach”). The court’s order dismissed Ms. Caples’
Objections to Accounting and her Petition for Breach, without prejudice to her
right to pursue the claims raised in her Petition for Breach in a civil action.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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After careful review, we affirm the order in part, vacate in part, and remand
with instructions.
The undisputed facts are as follows. Ms. Caples has three daughters,
Ms. Purcell, Ms. Cullen, and Ms. D’Alessandro. On May 21, 2018, Ms. Caples
signed a general Power of Attorney (“POA”) naming Ms. Purcell as her agent,
and Ms. Purcell signed an agent acknowledgement. On October 11, 2018, a
second POA was prepared and executed by Ms. Caples, again naming Ms.
Purcell as her agent. Ms. Purcell signed another agent acknowledgement. Ms.
Purcell then served as Ms. Caples’ POA until February 21, 2019, when Ms.
Caples terminated the POA naming Ms. Purcell as her agent, and executed a
new POA naming Ms. Cullen and Ms. D’Alessandro as her agents.
On May 14, 2019, Ms. Cullen and Ms. D’Alessandro filed a “Petition to
Compel Respondent Katherine M. Purcell to File an Accounting Pursuant to 20
Pa.C.S. § 5610.” Ms. Purcell filed an “Answer and New Matter” on June 24,
2019. On September 18, 2019, Ms. Caples filed the Objections to Accounting,
as well as the Petition for Breach. Ms. Purcell thereafter filed a response to
both.
On June 25, 2020, Ms. Purcell filed a petition to dismiss Ms. Caples’
Objections to Accounting and Petition for Breach, on the basis that the
orphans’ court lacked jurisdiction over the claims Ms. Caples asserted therein.
Ms. Caples filed an answer on July 8, 2020. On August 20, 2020, the court
issued an order granting Ms. Purcell’s petition for dismissal, and dismissing
the Objections to Accounting and Petition for Breach, without prejudice to Ms.
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Caples’ right to file a civil action, or raise a counterclaim in any civil action, as
to the same subject matter. Ms. Caples filed a motion for reconsideration of
the court’s order, which the court denied.
Ms. Caples then filed a timely notice of appeal. It does not appear that
the court ordered her to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, but it issued a Rule 1925(a) opinion on October 20,
2020. Herein, Ms. Caples raises the following four issues for our review:
A. Whether the [o]rphans’ [c]ourt has mandatory jurisdiction
under 20 Pa.C.S.[] § 711(22) to hear [Ms.] Caples’ claims against
[Ms.] Purcell, who was acting as Ms. Caples’ agent under [a POA]?
B. Whether the [o]rphans’ [c]ourt should have exercised
nonmandatory jurisdiction under 20 Pa.C.S.[] § 712 to hear
related claims against [Ms.] Purcell?
C. Whether the [o]rphans’ [c]ourt was required to have a hearing
prior to dismissing [Ms.] Caples’ Petition for Breach … filed against
her former agent, [Ms.] Purcell, for lack of jurisdiction when Ms.
Caples raised numerous allegations of self-dealing, lack of good
faith, commingling of funds, and conflicts of interest with respect
to her interests and Ms. Purcell’s interests in two limited liability
corporations, real estate owned by both parties, and distribution
of the proceeds of sale, and a certain Note executed by Ms. Caples
in favor of Ms. Purcell, all of which occurred while Ms. Caples
suffered from diminished capacity[?]
D. Whether, when the [o]rphans’ [c]ourt found that it did not have
jurisdiction, but that the Civil Division had jurisdiction over Ms.
Caples’ claims, the [o]rphans’ [c]ourt was required to transfer the
case to the Civil Division pursuant to 42 Pa.C.S.[] § 5103(c) and
established Pennsylvania case law?
Ms. Caples’ Brief at 4-5.
In Ms. Caples’ first two issues, which we address together, she contends
that the orphans’ court erred by concluding that it did not have mandatory
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jurisdiction over her Objections to Accounting or her Petition for Breach. Ms.
Caples also argues that, alternatively, the court erred by failing to exercise
non-mandatory jurisdiction over the claims raised in those filings.
Mandatory and non-mandatory jurisdiction of the orphans’ court is
established in 20 Pa.C.S. §§ 711 and 712. Those provisions state, in pertinent
part:
§ 711. Mandatory exercise of jurisdiction through orphans’
court division in general
Except as provided in section 712 (relating to nonmandatory
exercise of jurisdiction through the orphans’ court division) and
section 713 (relating to special provisions for Philadelphia
County), the jurisdiction of the court of common pleas over the
following shall be exercised through its orphans’ court division:
***
(22) Agents.--All matters pertaining to the exercise of powers
by agents acting under powers of attorney as provided in
Subchapter C of Chapter 54 (relating to health care agents and
representatives) or in Chapter 56 (relating to powers of attorney).
20 Pa.C.S. § 711(22).
§ 712. Nonmandatory exercise of jurisdiction through
orphans’ court division
The jurisdiction of the court of common pleas over the following
may be exercised through either its orphans’ court division or
other appropriate division:
***
(3) Other matters.--The disposition of any case where there are
substantial questions concerning matters enumerated in section
711 and also matters not enumerated in that section.
20 Pa.C.S. § 712(3).
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Because the jurisdiction of the orphans’ court is governed by statute,
Ms. Caples’ arguments involve a matter of statutory interpretation. Therefore,
we apply de novo review, and our scope of review is plenary. See Mercury
Trucking, Inc. v. Pennsylvania Pub. Util. Comm’n, 55 A.3d 1056, 1067
(Pa. 2012).
Preliminarily, we note that the orphans’ court stated that it dismissed
Ms. Caples’ Objections to Accounting “not for lack of [o]rphans’ [c]ourt
jurisdiction, but because [Ms. Caples] did not establish that any of the
allegedly improper transactions were accomplished by [Ms.] Purcell’s exercise
of [POA] … and, thus, should have been included in her POA account.”
Orphans’ Court Opinion (“OCO”), 10/20/20, at 2 (emphasis added). Ms.
Caples does not acknowledge this statement by the court, let alone offer any
developed challenge to the court’s rationale for dismissing her Objections to
Accounting on non-jurisdictional grounds. Consequently, she has waived any
such claim for our review. See Coulter v. Ramsden, 94 A.3d 1080, 1088-
89 (Pa. Super. 2014) (“[A]rguments which are not appropriately developed
are waived.”). Therefore, we affirm the court’s order to the extent it dismissed
the Objections to Accounting.
In regard to Ms. Caples’ Petition for Breach, the orphans’ court
concluded that it lacked mandatory jurisdiction over these claims because Ms.
Caples did not allege that Ms. Purcell engaged in improper or unfair
transactions while acting as Ms. Caples’ POA. See OCO at 2. After review of
the Petition for Breach, we agree.
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In that document, Ms. Caples first averred that Ms. Purcell “breached
her fiduciary duty and exerted undue influence over [Ms. Caples] by
convincing [Ms. Caples] to borrow money from her.” Petition for Breach,
9/18/19, at 4 ¶ 22. Ms. Caples attached to the petition a loan document
showing that Ms. Purcell loaned Ms. Caples just under $200,000. See id. at
“Exhibit E.” Notably, the loan document is dated July 2, 2018, three months
before Ms. Purcell became Ms. Caples’ POA, and it is signed by both Ms. Caples
and Ms. Purcell in their individual capacities. Id.Second, Ms. Caples claimed in the Petition for Breach that Ms. Purcell
had breached her duties as POA “by not giving [Ms. Caples] all of the proceeds
from the sale of [Ms. Caples’] home.” Id. at 5 ¶ 27. Ms. Caples made no
allegation that Ms. Purcell was involved in the sale of the home as Ms. Caples’
POA, or that she withheld funds from the sale in her capacity as Ms. Caples’
agent.
Third, Ms. Caples averred that Ms. Purcell “unduly influenced [Ms.
Caples] to sell her [2%] ownership interest in KP Investments, L.L.C.” to Ms.
Purcell’s son. Id. at 5 ¶ 22. Ms. Caples attached a copy of the transfer of her
ownership interest, which was signed by Ms. Caples in her individual capacity.
See id. at “Exhibit F.” At no point did Ms. Caples allege that Ms. Purcell was
involved in the transaction as POA.
Fourth, Ms. Caples alleged that Ms. Purcell is “retaining money that is
rightfully [Ms. Caples,]” and refusing “to provide [Ms. Caples] with detailed
information on the location of all of [Ms. Caples’] money.” Id. at 6 ¶ 34. Fifth,
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Ms. Caples asserted that Ms. Purcell breached her duties as Ms. Caples’ agent
by making Ms. Caples “write [Ms. Purcell] two separate checks on November
24, 2018, one for $100,000, and one for $30,850.” Id. at 6 ¶ 35. Again, Ms.
Caples made no allegation that Ms. Purcell was exercising her powers under
the POA when she allegedly obtained Ms. Caples’ money, or ostensibly forced
Ms. Caples to write checks to Ms. Purcell.
The orphans’ court concluded that the claims presented in Ms. Caples’
Petition for Breach alleged “that [Ms.] Purcell, in her individual capacity,
engaged in transactions with [Ms.] Caples that were unfair or otherwise
improper during the period when [Ms.] Purcell was agent under [the] POA….”
OCO at 2-3 (emphasis added). Therefore, the court found that it did not
possess mandatory jurisdiction of Ms. Caples’ Petition for Breach under section
711(22), because the claims raised therein “did not concern the exercise of
[Ms.] Caples’ POA by [Ms.] Purcell acting as agent.” Id. at 2 (emphasis in
original). Additionally, the court declined to exercise non-mandatory
jurisdiction over Ms. Caples’ claims under section 712(3) because she has
raised similar claims in three pending civil cases initiated by Ms. Purcell. Id.
at 3. Accordingly, the court determined that exercising non-mandatory
jurisdiction over the same claims in this case was “both unnecessary and
duplicative….” Id. at 4.
We discern no error or abuse of discretion in the court’s decision.
Initially, we agree with the court that, under the plain language of section
711(22), it has mandatory jurisdiction only over matters involving “the
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exercise of powers by agents acting under powers of attorney….” 20
Pa.C.S. § 711(22) (emphasis added). We reject Ms. Caples’ insistence that
the statute applies to any claim arising between a principal and an individual
named as their POA, even if the claim involves conduct or actions by the
parties in their individual capacities. In support of this position, Ms. Caples
insists that when Ms. Purcell accepted her appointment as POA, she became
subject to the duties outlined in 20 Pa.C.S. § 5601.3 and, “[t]hus, any actions
Ms. Purcell took in violation of those duties must be deemed as an ‘exercise’
of an agent’s power set forth in 20 Pa.C.S.[] § 711(22).” Ms. Caples’ Brief at
34.
We are unconvinced. First, as Ms. Purcell notes in her brief, Ms. Caples
cites no case law interpreting section 5601.3 so broadly. Second, we agree
with Ms. Purcell that doing so “would have unprecedented ramifications for
every person named as an agent in [a POA].” Ms. Purcell’s Brief at 11-12.
Ms. Purcell convincingly explains:
As one example, the rule proposed by Ms. Caples would require
every agent under a [POA] to file an Account listing not only
transactions undertaken as agent, but also every other
transaction or matter to which the agent and principal may have
independently been parties.
As another example, Ms. Caples theory would convert every agent
under a POA into a general fiduciary for the principal, for which he
or she could potentially be held accountable for every event or
transaction involving the agent and the principal, even if there was
never an exercise by the agent of any of the powers granted under
[the POA].
So[,] if a 50-year-old parent designates a son or daughter as an
agent under a [POA], and then later[,] the parent decides to sell
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his or her car to that child for $10,000.00, the mere fact that the
POA existed would impose a fiduciary duty on the son or daughter
to comply with the requirements of [s]ection 5601.3, including
acting in accordance with the principal’s reasonable expectations,
acting in good faith and acting loyally for the principal’s benefit.
It is respectfully submitted this is not and should not be the
applicable standard governing [a POA].
Frankly, it is not inconceivable that if such a rule was adopted,
there would be justifiable hesitancy on the part of individuals
asked to serve as agents, because they could later be blamed for
having innocently entered into transactions with a principal acting
on his/her own behalf, which did not involve exercise of any
powers under the [POA], and which were merely transactions
between, say for example, [a] parent and child.
Given the clear language of [s]ection 711(22), the absence of any
transactions alleged[] in which Ms. Purcell acted as Ms. Caples’
agent, and the lack of any statutory or case law to the contrary,
the [o]rphans’ [c]ourt’s jurisdiction, as it relates to [a POA],
applies only to transactions in which there has been an exercise
of the power by the agent on behalf of the principal. And given
the absence of any such transactions undertaken here, the
[o]rphans’ [c]ourt lacked jurisdiction over Ms. Caples’ filing[], and
[it was] properly dismissed.
Ms. Purcell’s Brief at 12-13 (footnote omitted).
We conclude that Ms. Purcell’s and the orphans’ court’s interpretation of
section 711(22) is correct. That provision triggers mandatory orphans’ court
jurisdiction only over claims involving an agent’s exercising his or her powers
under a POA. Here, Ms. Caples only challenged actions taken by Ms. Purcell
in her individual capacity while serving as Ms. Caples’ POA. She did not
allege any matters involving Ms. Purcell’s acting as an agent under the POA.
Accordingly, we agree with the orphans’ court that it did not have mandatory
jurisdiction under section 711(22) over Ms. Caples’ Petition for Breach.
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We also discern no abuse of discretion in the orphans’ court’s decision
to not exercise non-mandatory jurisdiction under section 712(3). Ms. Caples
contends that, “[b]ecause the [o]rphans’ [c]ourt had mandatory jurisdiction
under [s]ection 711(22), [it] could also exercise its non[-]mandatory
jurisdiction pursuant to [section] 712(3) to hear all claims of undue influence
outside of the time that Ms. Purcell was serving as Ms. Caples’ agent under
the [POA].” Ms. Caples’ Brief at 38. For the reasons set forth supra, the court
did not have mandatory jurisdiction under section 711(22) and, thus, Ms.
Caples’ argument fails. Moreover, we agree with the orphans’ court that its
exercising non-mandatory jurisdiction over this case would be unnecessary
and duplicative, given the three pending civil cases involving the same parties
and issues.
In Ms. Caples’ third claim on appeal, she insists the court erred by not
holding a hearing to assess whether Ms. Purcell was exercising her powers as
an agent under the POA when engaging in the allegedly improper conduct
cited by Ms. Caples in her Petition for Breach. In response, Ms. Purcell argues
that the Petition for Breach failed to set forth any allegations that would vest
the court with jurisdiction. See Ms. Purcell’s Brief at 15. Consequently, Ms.
Purcell concludes that it was “legally as well as factually incorrect for Ms.
Caples to suggest there was somehow and somewhere evidence, beyond the
framework of her pleadings and the arguments she was given free rein to
present, which could have been offered at a hearing … [and] changed the
outcome below.” Id. at 15-16.
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We agree with Ms. Purcell. We also observe that Ms. Caples does not
explain in her brief to this Court what evidence she would have offered at a
hearing to demonstrate the court’s jurisdiction under section 711(22). Thus,
no relief is due.
Finally, Ms. Caples maintains that the court erred by not transferring
this case to the Civil Division when it determined that it lacked mandatory
jurisdiction and declined to exercise non-mandatory jurisdiction. See Ms.
Caples’ Brief at 42-43 (citing, inter alia, 42 Pa.C.S. § 5103(c) (“If an appeal
or other matter is taken to, brought in, or transferred to a division of a court
to which such matter is not allocated by law, the court shall not quash such
appeal or dismiss the matter, but shall transfer the record thereof to the
proper division of the court, where the appeal or other matter shall be treated
as if originally filed in the transferee division on the date first filed in a court
or magisterial district.”)). Ms. Caples requested, in her motion for
reconsideration of the court’s order dismissing the case, that the orphans’
court transfer the case to the Civil Division of the Court of Common Pleas of
Lehigh County. In its order denying the motion for reconsideration, the court
explained that Ms. Caples had previously opposed transferring the case and
had argued that a transfer was inappropriate under Pennsylvania law. See
Order, 9/15/20, at 1 n.1 (citation omitted). The court also noted that its order
dismissing this case “does not preclude [Ms.] Caples from continuing to
advance the same alleged breaches of fiduciary duty in the three cases in the
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Civil Division … regarding transactions that occurred during [Ms.] Purcell’s
tenure as agent for [Ms.] Caples.” Id.
Ms. Caples now contends that the court misconstrued her earlier
opposition to transferring the case, and that she never objected to the court’s
transferring it under section 5103(c) if the court determined that it lacked
jurisdiction. She stresses that “the Lehigh County Court of Common Pleas
clearly has jurisdiction over the Petitions filed by Ms. Caples.” Ms. Caples’
Brief at 43. Because the orphans’ court concluded that it lacked jurisdiction,
Ms. Caples insists that, pursuant to section 5103(c), the court was obligated
to transfer her Objections to Accounting and Petition for Breach to the Civil
Division, rather than dismiss them. Id. (citing In re Estate of Ciuccarelli,
81 A.3d 953, 961 (Pa. Super. 2013) (holding that “the Trial Division was
obligated to transfer the case to the proper forum,” which was the orphans’
court)).
Initially, as Ms. Purcell notes, Ms. Caples again fails to acknowledge that
the orphans’ court did not dismiss the Objections to Accounting on the grounds
that it lacked jurisdiction but, instead, because the merits of that pleading did
not warrant relief. Thus, the court properly dismissed the Objections to
Accounting without transferring.
Regarding the Petition for Breach, Ms. Purcell contends that the court
properly dismissed that matter, rather than transferring it, because the issues
raised in that petition are already pending in three separate cases in the Civil
Division. Accordingly, Ms. Purcell insists that the court’s decision not to
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transfer the Petition for Breach serves “judicial economy at no harm to [Ms.
Caples] or anyone else.” Ms. Purcell’s Brief at 19.
Ms. Purcell’s argument is unconvincing. This Court has declared:
“A case may not be dismissed because [it was] brought in the
wrong [division; instead] ... the remedy for bringing the case in
the wrong division is not a dismissal, but a transfer of the matter
to the correct division.” Commonwealth v. Wadzinski, 401
A.2d 1129, 1132 ([Pa.] 1978); see also In re Estate of
Cantor, … 621 A.2d 1021, 1023 ([Pa. Super.] 1993). This
precept applies equally to dismissals entered with and without
prejudice. See Cantor, 621 A.2d at 1023 (finding that the trial
court erred in dismissing [the] appellant’s claims without prejudice
instead of transferring the matter to the civil
division); cf. Lucidore v. Novak, … 570 A.2d 93, 95 ([Pa.
Super.] 1990) (finding that the trial court erred in dismissing [the]
appellant’s claims with prejudice instead of transferring the matter
to the orphans’ court).
In re Estate of Ciuccarelli, 81 A.3d at 959-60. Ms. Purcell cites no case law
to support her position that we must consider judicial economy and prejudice
suffered by the party seeking transfer before concluding the court erred in
dismissing the case. Instead, the rule to transfer a case filed in an incorrect
division of our court system is a mandate that the court must apply uniformly,
not a remedy a party must prove is warranted.
Accordingly, we vacate the portion of the orphans’ court’s August 20,
2020 order that dismissed Ms. Caples’ Petition for Breach. We remand for the
court to transfer the Petition for Breach to the Civil Division of the Court of
Common Pleas of Lehigh County. We affirm the order in all other respects.
Order vacated in part, affirmed in part. Case remanded with
instructions. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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