In Re: Est of Notarnicola, N., Appeal of: Grajczar

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF NICHOLAS A. IN THE SUPERIOR COURT OF
NOTARNICOLA, A/K/A NICHOLAS A. PENNSYLVANIA
NOTARNICOLA, JR., A/K/A NICHOLAS
NOTARNICOLA, DECEASED
APPEAL OF: AUDREY GRAJCZAR
No. 2079 WDA 2014
Appeal from the Order Entered August 18, 2014
In the Court of Common Pleas of Armstrong County
Orphans' Court at No(s): 03-11-00014
BEFORE: BOWES, OLSON & STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 21, 2016
Appellant, Audrey Grajczar, appeals from the order entered on August
18, 2014,1 dismissing her exceptions to a final accounting decree, directing
the distribution of assets in the estate of Nicholas A. Notarnicola (“the
Estate”), and denying Appellant’s motion for discovery as moot. Upon
review, we quash the appeal for lack of jurisdiction.
The trial court summarized the facts and procedural history of this
case as follows:
On March 15, 2001, Nicholas A. Notarnicola (“Decedent”)
executed a power of attorney that designate[d] his nephew,
Michael Zanolli, as his agent (the “POA”). In the POA,
Decedent generally grants Zanolli the power to “transact all
of my business and to manage all my property and affairs
as I might do if personally present….” The POA further
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1
Appellant avers this appeal lies from an order entered on November 25,
2014. However, as discussed below, the appeal lies from the order dated
August 18, 2014. We have changed the caption accordingly.
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enumerate[d] several specific grants of power to Zanolli,
which include[d] the following:
(1) To exercise any power or take any action on my
behalf, as fully and completely as I could do
myself, which my Agent in my Agent’s sole
discretion believes to be in my best interest. …
* * *
(3) To draw checks against any bank account,
brokerage account or any other account in my
name; to make deposits or withdrawals and to
transfer funds from one account to another; to
open any close any accounts and to sign
signature cards and any other documents
required for such purpose.
* * *
(8) To make, do and transact all and every kind of
business whatsoever, including the receipt,
recovery, collection, payment, compromise,
settlement and adjustments of all accounts,
legacies, bequests, dividends, annuities,
demands, debts, taxes and obligations which may
now or hereafter be due, owing or payable by me
or to me;
* * *
(15) To exercise any rights which I have with respect
to any policies of insurance on my life of which I
am the owner or in which I have any rights
including, but not limited to, the following: the
right to cancel and/or surrender the policy and to
receive the cash value; the right to borrow all or
part of the cash value; the right to convert the
policy to a paid-up status; and the right to
exercise any settlement options;
* * *
(16) To take charge of my person in case of illness or
disability of any kind; to authorize my admission
to a medical, nursing, residential or similar
facility, and to enter into agreements for my
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care; to consent to surgical or other medical
procedures; and to remove and place me in such
institutions or places as my Agent may deem
best for my personal care, comfort, benefit and
safety after giving consideration to any wishes I
have previously expressed on this subject.
(17) To make such gifts of my property to such
persons and in such form and amounts as my
Agent in my Agent’s sole discretion believes are
in my best interest.
Decedent also executed his Last Will and Testament on
March 15, 2001. In it, Decedent directs first that his last
funeral and healthcare expenses be paid and all of his
property sold. The proceeds from the sale, together [with]
all other remaining assets, are to be included in the
residuary estate, which then is to be distributed in equal
shares to the following six designated beneficiaries: Judith
Lynn Vila, Gerald Zanolli, Michael Zanolli, Anthony Calabro,
Nick Calabro, and Anthony Campobasso. Decedent
appointed Michael Zanolli as executor.
For several years in the 1960s, Decedent worked for a
company in Apollo, Pennsylvania that utilized radioactive
materials in its operations. Decedent was exposed to such
materials and later developed several health problems,
including bladder cancer. Although it is not entirely clear
from the record, sometime prior to 2008, [Appellant]
became acquainted with Decedent and undertook to care for
him as a live-in companion. In 2008, [Appellant] became
aware of the United States Department of Labor’s Energy
Employees Occupational Illness Compensation Programs Act
(“EEOICPA”), which provides monetary compensation to
individuals beset with illnesses caused by certain
enumerated workplace conditions.
[Appellant] assisted Decedent in preparing and submitting
an application for benefits, on which she was designated as
his authorized representative. On May 8, 2008, the
Department of Labor awarded Decedent $150,000.00 in
compensation, together with healthcare benefits for his
bladder cancer. Shortly thereafter, on September 12, 2008,
Decedent purchased a Prudential annuity contract in the
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amount of $150,000.00, on which Decedent listed
[Appellant] as the primary beneficiary (the “Annuity”).
Decedent and [Appellant] also allegedly opened a joint
checking account, although the record contains no evidence
of such an account.
In early August 2009, because of her own advanced age
and personal circumstances, [Appellant] moved out of
Decedent’s residence, as she was no longer able to meet
the heavy demands of providing for his daily care.
Thereafter, Zanolli placed Decedent in a skilled nursing
facility in Monroeville, Pennsylvania. Although
communication was difficult, Decedent and [Appellant]
remained in contact. On or about August 3, 2009, Zanolli,
relying on the POA, removed [Appellant] as the primary
beneficiary of the Annuity and substituted himself as
primary beneficiary. Sometime prior to September 2009,
Zanolli removed himself and substituted the Estate as the
primary beneficiary. No application or form requesting the
latter change is included in the record, but the financial
statements provided by Prudential beginning in September
2009 list the “Estate” as the primary beneficiary. Around
the same time, Zanolli, again relying on the POA, accessed
and negotiated the Annuity’s cash value to provide for
Decedent’s healthcare needs, which included Decedent’s
placement in the skilled nursing facility and, ultimately,
hospice care. All of Zanolli’s transactions in changing the
beneficiary of the Annuity and negotiating its cash value
were approved by Prudential.
Decedent died on October 6, 2010. Letters Testamentary
were granted to Zanolli as Executor of Decedent’s will on
January 12, 2011. Because not all of the Annuity’s cash
value had been utilized for Decedent’[s] care, the remaining
funds, totaling approximately $67,000.00, were transferred
into Decedent’s residuary estate. Zanolli published notice of
the probating of Decedent’[s] will on January 15, January
22, and January 29, 2011, in the local Valley News Dispatch
newspaper. On May 16, 2011, [Appellant], via her counsel,
sent a letter to Zanolli notifying him of her claim to both the
Annuity and the joint checking account. Despite receipt of
the letter, and apparently due to oversight, on or about
September 22, 2012, Zanolli sent notice to the six named
beneficiaries of Decedent’s will, but not to [Appellant], of his
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intent to file his First and Final Account. Zanolli then filed
the First and Final Account, together with a proposed
distribution schedule, on October 2, 2012. No objections or
other challenges to the account were filed with the [c]ourt,
which subsequently confirmed the account and entered a
decree of distribution on November 2, 2012. The decree
distributes the cash value of Decedent’s residuary estate,
which includes the remaining funds from the Annuity, to the
six beneficiaries named in Decedent’s will.
[Appellant] filed exceptions to the [c]ourt’s decree on
November 21, 2012, in which she again assert[ed] her
claims to the Annuity and joint checking account. On
November 27, 2012, the [c]ourt entered an order
permitting the filing of exceptions and appointing Jack J.
Steiner, Esq., as auditor. For reasons not immediately
apparent from the record, the [c]ourt did not schedule a
hearing on the exceptions. It also does not appear that the
auditor conducted an audit of the First and Final Account,
held a hearing on [Appellant’s] exceptions, or prepared an
auditor’s report. No further action was taken on the
exceptions until the Estate filed [a] motion to dismiss on
April 4, 2014, approximately 16 months after [Appellant]
filed her exceptions. [Appellant] responded to the Estate’s
motion and filed a motion for leave to conduct discovery.
The [c]ourt heard argument on May 27, 2014, and
scheduled a hearing on the motion to dismiss for August 1,
2014. Thereafter, the parties submitted additional filings
and documents to the [c]ourt and agreed that they would
rest on their written submissions in lieu of a hearing.
Trial Court Opinion, 8/18/2014, at 2-7 (record citations omitted).
On August 18, 2014, the trial court entered an order and opinion
granting the Estate’s motion to dismiss. The trial court also dismissed
Appellant’s exceptions by operation of law and on the merits and denied
Appellant’s discovery request as moot. The trial court directed the Clerk of
Orphans’ Court “to enter on the docket that [Appellant’s] exceptions were
deemed denied by operation of law as of March 21, 2013.” Trial Court
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Order, 8/18/2014, at 1. On September 8, 2014, Appellant filed exceptions
to the trial court’s August 18, 2014 decision. On November 25, 2014, the
trial court entered an order denying and dismissing Appellant’s September 8,
2014 exceptions, stating it “already [] ruled upon all of the issues raised in
[Appellant’s] second set of exceptions, the [c]ourt also [found] that ruling on
a second set of exceptions would be improper under the Pennsylvania Rules
of Orphans’ Court Procedure[.]” Trial Court Order, 11/25/2014, at 1.
“We first address, sua sponte, the timeliness of this appeal because, if
the appeal is late, we have no jurisdiction to entertain it.” In re Estate of
Allen, 960 A.2d 470, 471 (Pa. Super. 2008). The trial court entered an
order on November 2, 2012 confirming the First and Final Account filed by
the executor and directing distribution of the Decedent’s estate. Appellant
filed timely exceptions on November 21, 2012. See Pa.O.C.R. 7.1(a)
(setting twenty-day time limit for exceptions). The court issued no ruling on
the exceptions. Accordingly, they were deemed denied by operation of law
on the 121st day after their filing, specifically March 22, 2013. See
Pa.O.C.R. 7.1(f) (setting time frame for denial by operation of law). On that
day, the 30-day appeal period set by Pa.R.A.P. 903(a) began to run. See In
re Estate of Allen, 960 A.2d at 471; Pa.O.C.R. 7.1(f); Pa.R.A.P. 903(a).
Thus, Appellant’s notice of appeal filed on December 23, 2014 fell outside
the 30-day appeal period. See Pa.R.A.P. 903.
Moreover, we have previously determined,
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‘in a decedent's estate, the confirmation of the final account
of the personal representative represents the final order,
subject to exceptions being filed and disposed of by the
court.’ In re Estate of Habazin, 679 A.2d 1293, 1295 (Pa.
Super. 1996). Rule 7.1(a) of the Pennsylvania Orphans'
Court Rules generally provides that ‘no later than twenty
(20) days after entry of an order, decree or adjudication, a
party may file exceptions to any order, decree or
adjudication which would become a final appealable
order under Pa.R.A.P. 341(b) or Pa.R.A.P. 342 following
disposition of the exceptions.
In re Wilton, 921 A.2d 509, 512 (Pa. Super. 2007) (emphasis in original).
Thus, the November 2, 2012 order confirming the First and Final
Account became appealable on the day the court disposed of Appellant's
exceptions, i.e., on August 18, 2014. Appellant filed her notice of appeal on
December 23, 2014, also outside of the 30-day appeal period.2 See
Pa.R.A.P. 903. Thus, for all of the foregoing reasons, we lack jurisdiction to
entertain Appellant’s appeal.
Finally, we must address the Estate’s motion to dismiss for Appellant’s
failure to file a designation of the contents of the reproduced record
pursuant to Pa.R.A.P. 2154, filed on March 3, 2015. The Estate sought to
have the appeal quashed or dismissed because Appellant failed to designate
the contents of the reproduced record timely. On April 21, 2015, this Court
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2
We note that Appellant’s notice of appeal states that she is appealing “the
[o]rder originally entered … on August 18, 2014” as well as “from the
[c]ourt’s [o]rder of November 25, 2014 disposing of [her] exceptions to” the
August 18, 2014 order and opinion. Notice of Appeal, 12/23/2014, at 1.
Appellant has not offered any legal authority, and our independent review
has not revealed any, to suggest that she could file a second set of
exceptions to toll the 30-day appeal period.
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issued a per curiam order denying relief without prejudice for the Estate to
raise the issue before the current panel. The Estate has not raised this issue
again. Regardless, because we lack jurisdiction to entertain Appellant’s
appeal, the Estate’s motion to dismiss is moot. Thus, we reaffirm the denial
of the Estate’s motion to dismiss for failing to designate the reproduced
record in a timely manner.
Appeal quashed. Motion to dismiss denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2016
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