Estate of: Ciuccarelli, G., Appeal of: Caruso, F.

J. A32043/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF: GAETANO CIUCCARELLI, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
:
:
APPEAL OF: FRANK CARUSO, : No. 1251 EDA 2014
:
Appeal from the Order Entered April 2, 2014
In the Court of Common Pleas of Philadelphia County
Orphans’ Court No(s).: 1936 DE of 2006 Control Nos. 145073
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 12, 2014
This case returns to us after a prior panel remanded. Appellant, Frank
Caruso, acting as Administrator of the Estate of Eileen Caruso, and
individually, appeals from the order of the Philadelphia County Court of
Common Pleas, Orphans’ Court Division, dismissing his escrow forgery
complaint on preliminary objections. Appellant avers the court erred in
sustaining Appellee’s, T.D. Bank’s, preliminary objections to the complaint
based upon Eileen Caruso’s, decedent’s adopted daughter’s, lack of standing
in the underlying estate case. We affirm.
We adopt the facts and procedural posture of this case as stated by a
prior panel of this Court.
*
Former Justice specially assigned to the Superior Court.
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The factual and procedural history of this case is
lengthy. On November 10, 2004, Decedent [Gaetano
Ciuccarelli] executed a reciprocal will with his wife (“2004
Will”). Following her death, Decedent was unable to locate
the 2004 Will, and executed a second will on May 2, 2006
(“2006 Will”). Both the 2004 Will and the 2006 Will named
Decedent’s sister, Angelia Scheswohl, and her husband,
Edward Scheswohl (“the Scheswohls”), as Decedent’s sole
beneficiaries. Trial Court Opinion (“T.C.O.”), 1/16/2012, at
2–3.
On November 2, 2006, Decedent died. He was survived
by the Scheswohls and by his adopted daughter, Eileen
Caruso. On November 21, 2006, the 2006 Will was
admitted to probate as the last will and testament of
Decedent. The Scheswohls were named as executors, but
renounced that right in favor of their attorney, Christine
Embry Waltz (“Attorney Waltz”). Letters of administration
cum testamento annexo were issued to her. On December
19, 2006, in an action filed in the Orphans’ Court Division,
Eileen Caruso challenged Decedent’s 2006 Will
(hereinafter, “Will Contest”). Eileen Caruso alleged
testamentary incapacity and undue influence. She was
represented by Raymond J. Quaglia (“Attorney Quaglia”).
Attorney Waltz, in her capacity as administratix of
Decedent’s estate, was represented by C. George Milner
(“Attorney Milner”).
Following discovery, Attorney Waltz filed a motion
to dismiss Eileen Caruso’s complaint, alleging that
[she] lacked standing. On January 10, 2008, the
trial court (per the Honorable Anne Lazarus, then sitting
as a Common Pleas Judge) dismissed the Will Contest
on the basis that Eileen Caruso lacked standing.
Eileen Caruso appealed to this Court. In a memorandum
filed on July 24, 2009, we remanded for further
proceedings before the trial court to determine: (1)
whether the 2004 Will could be probated without an
original; (2) whether the 2004 Will was invalid due to
testamentary incapacity or undue influence; and (3)
whether Decedent’s 2006 Will similarly was invalid. In re
Estate of Ciuccarelli, [1140 EDA 2008 (unpublished
memorandum) (Pa. Super. July 24, 2009).] On March 15
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and 16, 2010, trial on these issues proceeded before the
Honorable Matthew Carrafiello.
On July 8, 2010, while the Will Contest remained
pending in the Orphans’ Court Division of the Court of
Common Pleas of Philadelphia County, Eileen Caruso and
[her husband,] Appellant[1] (collectively, “the Carusos”),
filed a complaint in this separate action in the Trial Division
of that court. The Carusos asserted claims against TD
Bank, Attorney Milner, and Attorney Waltz. These new
allegations related to the escrow of proceeds from
the sale of Decedent’s home (hereinafter, the “Escrow
Case”). Specifically, the Carusos asserted that the parties
to the Will Contest consented to sell the residence and
place the monies resulting from the sale in escrow pending
determination of the underlying Will Contest. See
Appellant’s Stipulation and Consent to Sale of Real Estate,
7/30/2007, at 2 (“The net proceeds of the sale shall be
escrowed pending determination of the petition of
appeal filed by Eileen Caruso.”). The residence was
sold sometime “in the first half of 2007.” Brief for Attorney
Milner at 4. Initially, the money from the sale was held by
First Patriot Abstract Company (“FPAC”) with TD Bank. At
some time in April 2008, FPAC advised the parties that it
would no longer hold the subject funds, and it delivered a
check payable to the order of “George Milner / Raymond
Quaglia for Gae Ciuccarelli” to Attorney Milner. Attorney
Milner endorsed the check and deposited it in an interest-
bearing account, apparently without consulting the
Carusos or Attorney Quaglia. Based upon Attorney
Milner’s actions, the Carusos alleged that Attorney Milner
forged Attorney Quaglia’s signature to deposit the check,
and that Attorney Waltz and TD Bank also were liable.
Specifically, the Carusos asserted claims for: (1) fraud,
material misrepresentation, and forgery against Attorney
Milner; (2) breach of contract against Attorney Milner and
Attorney Waltz; (3) breach of fiduciary duty against
Attorney Waltz; and (4) breach of warranty under the
Uniform Commercial Code (“UCC”) against TD Bank. See
Escrow Case Complaint, 7/8/2010, at 1–9.
1
The appellant in that appeal is the appellant in the instant appeal.
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On August 11, 2010, the trial court ruled against Eileen
Caruso in the Will Contest, finding that (1) even if the
2006 Will was invalidated, the 2004 Will properly could be
probated; and (2) neither document was the product of
testamentary incapacity or undue influence. Eileen Caruso
filed exceptions, which were denied on December 20,
2012. She appealed, for the second time in the Will
Contest, to this Court. [See Estate of Ciuccarelli, 83
EDA 2011 (unpublished memorandum) (Pa. Super. Aug.
16, 2011), appeal denied, 229 EAL 2012.]
Meanwhile, on August 5, 2010, TD Bank had filed
preliminary objections in the Escrow Case, alleging
that the Carusos lacked the capacity to sue and had
failed to state a claim upon which relief could be
granted. See Preliminary Objections of TD Bank to
Escrow Case Complaint, 8/5/2010, at 1–5. On September
22, 2010, the Escrow Case was assigned to the Honorable
Allan L. Tereshko of the Trial Division. On September 24,
2010, Attorney Waltz filed her own preliminary objections,
alleging that the Trial Division lacked subject matter
jurisdiction under 20 Pa.C.S. § 711, and that the Carusos
had failed to state a claim upon which relief could be
granted for breach of contract or breach of fiduciary duty.
See Attorney Waltz's Preliminary Objections to Escrow
Case Complaint, 9/24/2010, at 2. On October 1, 2010,
Judge Tereshko sustained TD Bank’s preliminary objections
and dismissed the Carusos’ claims against TD Bank with
prejudice. On October 28, 2010, Judge Tereshko
sustained Attorney Waltz’s preliminary objections,
dismissed the Carusos’ claims against Attorney Waltz
without prejudice, and ordered the transfer of the
remainder of the case to the Orphans’ Court Division of the
Court of Common Pleas of Philadelphia County.
On March 3, 2011, following transfer, the Escrow Case
was assigned to Judge Carrafiello. See Decree, 3/3/2011,
at 1. On March 23, 2011, Judge Carrafiello filed a decree
that “stayed further action before [the] Orphans’ Court”
during the pendency of the underlying Will Contest appeal.
See Decree, 3/23/2011, at 1. On August 16, 2011, we
affirmed the Orphans’ Court Division’s decision in
the Will Contest. Specifically, we ruled that Eileen
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Caruso lacked standing to contest the 2006 Will. In
re Estate of Ciuccarelli, [83 EDA 2011, appeal denied,
229 EAL 2012 (Pa. 2012)]
On September 26, 2012, Attorney Milner filed a petition
to dismiss Appellant’s remaining claims in the Escrow
Case, asserting two bases: (1) that the Carusos lacked
standing where there had been a final determination that
Eileen Caruso had no beneficial interest in any part of the
Ciuccarelli estate; and (2) that the Carusos had suffered
no recoverable damages. On that same day, Judge
Carrafiello terminated the stay of the proceedings and
ordered all remaining parties to show cause as to why the
Escrow Case should not be dismissed for lack of standing.
On October 19, 2012, Judge Carrafiello dismissed
Appellant's case with prejudice and ordered that
“[Attorney] Milner shall distribute the proceeds from the
sale of Gaetano Ciuccarelli’s home as required by
provisions of Title 20, Pa[.] Statutes Consolidated.” See
Decree, 10/19/2012 at 1. . . .
In re Estate of Ciuccarelli, 81 A.3d 953, 955-57 (Pa. Super. 2013)
(footnotes omitted) (emphases added). This Court “conclude[d] that the
Trial Division erred when it dismissed Appellant’s claims against Attorney
Waltz and TD Bank. This controversy fell under the mandatory and exclusive
jurisdiction of the Orphans’ Court Division, and the Trial Division was
obligated to transfer the case to the proper forum.” Id. at 961. We thus
remanded the case, vacated the order and relinquished jurisdiction. Id. at
962.
Upon remand, the Orphans’ Court sustained the preliminary objections
of Appellees’ TD Bank and Attorney Waltz and dismissed Appellants’
complaint with prejudice. Order, 4/2/14. This timely appeal followed.
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Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
At this juncture we note, in the 2010 complaint in the underlying
escrow case, Appellant and Eileen Caruso raised claims against TD Bank for
breach of warranty. Appellants’ Complaint, 7/8/10, at 3. They stated claims
against C. George Milner, Esq. for fraud, material representation, forgery
and breach of contract. Id. at 5, 7. Appellant and Eileen Caruso stated a
cause of action against Christine Embry Waltz, Esq. for breach of contract
and fiduciary duty. Id. at 8. The complaint stated that “[a]t all times
material to this cause of action, [Appellant, Eileen Caruso and Appellees]
were parties to a written agreement [Stipulation and Consent to Sale of Real
Estate] executed on July 30, 2007”. Id. at 1.
The parties signed the following Stipulation and Consent to Sale of
Real Estate, which provided:
1. Christine Embery Waltz, Esquire, executed an
agreement of sale to sell premises 2425 Brownsville Road,
Feasterville PA for $276, 750.
2. Eileen Caruso filed a petition of appeal from the decree
of the Register of Wills granting letters of administration
CTA to Christine Embery Waltz, Esquire.
3. Eileen Caruso and her spouse, [Appellant], consent to
the sale of 2425 Brownsville Road, Feasterville, PA for a
gross sale price of $276, 750.[2]
2
We note that that the original stipulation in the record contains
handwritten corrections as to the amount of the sale of the property. The
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4. The net proceeds of the sale shall be escrowed
pending determination of the petition of appeal filed
by Eileen Caruso.
Id. at Ex. “A” (emphasis added).
Appellant raises the following issues for our review:
1.Whether the [c]ourt erred and abused its discretion in
dismissing Appellant’s escrow forgery claims because of its
prior ruling in the estate case in which the escrow occurred
to set aside [Decedent’s] will for undue influence for
reasons unrelated to the breach of contract, forgery and
fraud by the personal representative and attorney for the
estate causing damage to [A]ppellant?
2. Whether or not the [c]ourt erred and abused its
discretion in sustaining Appellee[‘s], TD Bank’s Preliminary
Objections to Appellants’ complaint in the form of a
speaking demurrer because Appellant lacked standing to
sue in the estate case in which the escrow occurred
involving different issues, different parties and different
claims for damage?
Appellant’s Brief at 3.
First, Appellant contends the court erred in dismissing the escrow
forgery claims against C. George Milner, Esq. and Christine Embry Waltz,
Esq, Administratrix CTA of the Estate of Gaetano Ciuccarelli based upon
Eileen Caruso’s lack of standing in the estate case. Appellant avers the two
cases were distinct, and thus “one case cannot legally preclude the other
under any legal theory contrary to the holding of the lower court in the case
at bar.” Id. at 23-24. Second, Appellant argues the court erred in
typewritten amount was $276,759. A copy of the stipulation was attached
to the complaint.
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sustaining Appellee’s, T.D. Bank’s, preliminary objections to its complaint
based upon Elieen Caruso’s lack of standing in the estate case.
As a threshold matter, we address the issue of whether Appellant has
standing in the instant case.
Our standard of review is well-established:
When reviewing a decree entered by the Orphans’ Court,
this Court must determine whether the record is free from
legal error and the court’s factual findings are supported
by the evidence. Because the Orphans’ Court sits as the
fact-finder, it determines the credibility of the witnesses
and, on review, we will not reverse its credibility
determinations absent an abuse of that discretion.
However, ‘we are not constrained to give the same
deference to any resulting legal conclusions.’ ‘Where the
rules of law on which the court relied are palpably wrong
or clearly inapplicable, we will reverse the court’s decree.’
In re Estate of Pendergrass, 26 A.3d 1151, 1153 (Pa. Super. 2011)
(citations omitted).
In In re Estate of Cuiccarelli, 83 EDA 2011, this Court “agree[d]
with the Orphans’ Court that [Appellant] lack[ed] standing to
contest the 2006 Will.” Id. at 8-9 (emphasis added).
Pennsylvania Rules of Civil Procedure 1028 governs preliminary
objections:
(a) Preliminary objections may be filed by any party to any
pleading and are limited to the following grounds:
* * *
(4) legal insufficiency of a pleading (demurrer)[.]
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Pa.R.C.P. 1028(a)(4). “[A] complaint filed by a party who lacks standing is
subject to demurrer.” Morrison Informatics, Inc. v. Members 1st Credit
Union, 97 A.3d 1233, 1242 (Pa. Super. 2014). “A challenge to the standing
of a party to maintain the action raises a question of law.” Fumo v. City of
Philadelphia, 972 A.2d 487, 496 (Pa. 2009).
In the case sub judice, the Orphans’ Court opined:
The present action involves claims by Appellant that
funds from the sale of [Decedent’s] home were transferred
under an unauthorized, forged signature. It is
undisputed that the funds in question are from the
sale of the Decedent’s home. As such, they are an
asset of the Estate of Gaetano Ciuccarelli and must
be distributed─upon administration of the estate─to
the beneficiaries named in the Decedent’s will.
The final and uncontestable holding of our Supreme
Court[3] is that Eileen Caruso and Appellant as
Administrator of her Estate is not a beneficiary of
the Estate of Gaetano Ciuccarelli. Even if we assume
the endorsement was forged, Appellant has no interest nor
suffers any discernible effect from Appellees’[4] purported
actions. Further, allegations that Appellees violated the
escrow agreement giving rise to this cause of action are
incorrect and not sustainable by the uncontroverted facts.
Specifically, the escrow agreement provided “the net
proceeds of the sale shall be escrowed pending
determination of the petition of appeal filed by Eileen
Caruso.” At the time of the endorsement, the
determination of the Will Contest had been made, and
3
The Pennsylvania Supreme Court denied allowance of appeal in the
underlying estate case; as stated above, the Superior Court had determined
that Eileen Caruso did not have standing to contest the will. See Estate of
Ciuccarelli, 229 EAL 2012 (Pa. 2012).
4
The Orphans’ Court sustained the preliminary objections of TD Bank and
Christine Embry Waltz, Esq.
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later became final, with Eileen Caruso and Appellant, as
administrator of her Estate, never having been successful
on the merits of any stage of the proceedings.
* * *
A party lacking standing may be dismissed
preliminarily, before trial, on motion. . . .
Orphans’ Ct. Op., 5/21/14, at 9-10, 13.
The Orphans’ Court found Appellant lacked standing and dismissed the
case. Id. at 13. We agree no relief is due. We discern no error by the
Orphans’ Court. See In re Estate of Pendergrass, 26 A.3d at 1153.
Accordingly, we affirm the order sustaining the preliminary objections and
dismissing the complaint.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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