In Re:The Estate of Diehl, H., Appeal of Armstrong

J-A04020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF HAROLD DIEHL IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: MARJORIE DIEHL-
ARMSTRONG
No. 911 WDA 2014
Appeal from the Order Dated May 6, 2014
In the Court of Common Pleas of Erie County
Orphans' Court at No(s): 2014-00054
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 27, 2015
Appellant, Marjorie Diehl-Armstrong, appeals from the order entered
on May 6, 2014, which denied Appellant’s Petition to Revoke Letters
Testamentary and for Probate of Will. We affirm.
The Orphans’ Court thoroughly and ably summarized the underlying
facts of this case. As the Orphans’ Court explained:
Harold Diehl [(hereinafter “Decedent”)] died on January 8,
2014 [and was] survived by one child, [Appellant].
On February 13, 2014, George and Mary Jane Brabender
filed a Petition for Probate and Grant of Letters offering for
probate a December 9, 2005 Last Will and Testament of
[Decedent]. By a February 13, 2014 Decree of the
Register, Letters Testamentary were granted to George and
Mary Jane Brabender and the December 9, 2005 Last Will
and Testament was admitted to probate and filed of record
as [Decedent’s] Last Will.
On March 10, 2014, [Appellant] filed her Petition to
Revoke[,] requesting that the [Orphans’] Court revoke the
letters testamentary granted to the Brabenders.
*Retired Senior Judge assigned to the Superior Court.
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[Appellant’s] Petition further requested probate of a
February 4, 2008 instrument attached to the Petition to
Revoke as [Decedent’s] last will and testament and to issue
letters testamentary to [Attorney] Lawrence A. D’Ambrosio.
The Estate of Harold Diehl, on May 1, 2014, filed an Answer
and New Matter to the Petition to Revoke [and alleged] that
the February 4, 2008 instrument was invalid. Specifically,
the executors alleged that the [Decedent] was not of sound
mind when he signed the February 4, 2008 instrument and
that he was the victim of fraud perpetrated by [Appellant,]
who previously plotted to murder him, and Lawrence A.
D’Ambrosio, [who was Appellant’s] attorney.[fn.1] . . .
[fn.1] In 2010, [Appellant] was convicted on charges of
armed bank robbery, conspiracy[,] and using a
destruction device in a crime of violence for her role in
the infamous “Pizza Bomber” case – the bank robbery
that killed Brian Wells. . . . [See] United States District
Court for the Western District of Pennsylvania Docket
No. 1-07-CR-00026-001. The [United States] Court of
Appeals for the Third Circuit posited [that Appellant was]
concerned that her father[, Decedent,] was squandering
her inheritance [and that she] hatched the bank robbery
plot in an attempt to obtain the funds to have
[Decedent] killed. See United States v. Diehl-
Armstrong, 504 F. App’x 152, 153-154 (3rd Cir. 2012),
cert. denied, 133 S. Ct. 958 (U.S. 2013).
[On May 6, 2014, the Orphans’ Court held a hearing on
Appellant’s Petition to Revoke. As the Orphans’ Court
explained, from the evidence that was presented during the
May 6, 2014 hearing, it arrived at the following well-
supported factual conclusions:]
...
Attorney Lawrence A. D’Ambrosio and [Appellant] have a
long-standing relationship, including that of attorney-client.
Attorney D’Ambrosio has known [Appellant] since the early
[1970s]. [Attorney D’Ambrosio] has served as [Appellant’s]
counsel over the years, including in 2000 when he
represented her in a civil matter in which she attempted to
remove [Decedent], her own father, as the administrator of
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his wife’s [(Appellant’s mother’s)] estate. In the 2000
proceeding against [Decedent], Attorney D’Ambrosio alleged
on [Appellant’s] behalf that [Decedent] had many medical
problems, including symptoms of obstinacy and impairment
of judgment and that it [would] be advisable to have a
guardian appointed to protect him from designing persons.
This action by [Appellant] was very upsetting to [Decedent]
and the two became estranged. Decedent expressed
concerns to friends that [Appellant] wanted his estate,
which he did not want to happen.
Accordingly, on November 9, 2000, [Decedent] executed a
holographic will leaving the bulk of his estate to charity and
[to] individuals other than [Appellant]. The bequests
included $100,000[.00] to Shriners Hospital, $300,000[.00]
to Edinboro University, $100,000[.00] to his sister-in-law,
Mabel Diehl, $350,000[.00] in bonds to his neighbors, the
Kendrath family, a $75,000[.00] bond to neighbor Pearl
Owsiejko, a $75,000[.00] bond to neighbors, a
$100,000[.00] bond to Phyllis Zack, a $40,000[.00] bond to
Jack Martin of Dusckas Funeral Home, a $65,000[.00] bond
to the Kay Sutton family[,] and a $100,000[.00] bond to
Susan Miller. The 2000 Will left only a $100,000[.00] bond
to [Appellant]. The Will named Dorothy Kendrath as
executor.
Thereafter, [Decedent] began giving away money. He gave
“$5,000[.00] checks to almost everybody and anybody.”
He also delivered $100,000[.00] and $50,000[.00] bonds to
people. During this process, [Decedent] gifted a total of
nearly [$1,000,000.00] to different individuals, primarily
those named in the 2000 Will.
On December 9, 2005, [Decedent] executed a Last Will and
Testament prepared by Attorney Sumner Nichols.
Consistent with the 2000 Will, the 2005 Will left only a
minimal amount to [Appellant] while the bulk of the estate
was to be distributed to [Decedent’s] friends. Specifically,
the 2005 Will left to [Appellant], who was incarcerated at
[the State Correctional Institute – Muncy], only
$2,000[.00]. Pursuant to the 2005 Will, Pearl Owsiejko was
to receive $5,000[.00], John and Beverly Ott were to
receive $5,000[.00], and Jack Martin $2,000[.00].
Decedent further left all of the possessions within his
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residence to George and Mary Jane Brabender. The
residuary estate was to go 25% to George and Mary Jane
Brabender, 25% to Susan Miller, 20% to Dorothy Kendrath,
10% to Mabel Diehl[,] and 20% to Sharon Easton. Finally,
the Will appointed George and Mary Jane Brabender as co-
executors.
During 2006 and 2007, Attorney D’Ambrosio continued his
representation of [Appellant] through civil proceedings
attempting to recover some of her property. Around the
same time, Attorney D’Ambrosio began visiting [Decedent]
at his residence in attempts to reconcile him with
[Appellant]. The two were estranged regarding the battle
[over Decedent’s] wife’s estate as well as [over] the well-
known allegations that [Appellant] engaged in criminal
activity in an attempt to raise money to have [Decedent]
killed. Decedent was aware that the alleged motive in the
Pizza Bomber case was for [Appellant] to raise money
toward the $250,000[.00] contract for [Decedent’s] murder.
With regard to [Appellant], [Decedent] declared: “If she
needed money she wouldn’t ask me; she would kill me
first.” Attorney D’Ambrosio told [Decedent] that the
statements regarding [Appellant’s] murder plot against him
were simply untrue statements made by accomplices.
Attorney D’Ambrosio’s visits occurred every couple of
months with reports back to [Appellant, whom] he visited
monthly, on the progress.
During 2007 and 2008, the Brabenders were increasingly
assisting [Decedent] with his needs, including grocery
shopping, taking him to health care appointments, helping
him pay his bills, etc. In 2008, [Decedent] did not even
know what he was signing when neighbors assisted him by
writing out the checks for him to pay his bills. On May 5,
2008, George Brabender informed [Decedent’s] health care
provider of his concern that [Decedent] needed 24-hour
surveillance. Mr. Brabender noted that [Decedent] had
memories of events occurring in [the] distant history of his
life, but [that he was not] clear on present events. Mr.
Brabender further observed [Decedent] forgetting to turn
off pots of water and finding them charred on the stove.
Attorney D’Ambrosio testified that [Decedent] contacted
him in January [] 2008 to come to his home and prepare a
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will for him. According to Attorney D’Ambrosio, [Decedent]
wanted to assure [Appellant] that she would have a place to
live once she was released from incarceration. The intent of
the will was simply to solely leave [Decedent’s] residence, a
very modest home, to [Appellant]. . . .
[The resulting] February 4, 2008 instrument was signed by
[Decedent] at his home when Attorney D’Ambrosio,
[Attorney D’Ambrosio’s] paralegal/secretary Loretta Susan
Balog, and Charles Black, who is a client of [Attorney]
D’Ambrosio’s, went to [Decedent’s] home. Attorney
D’Ambrosio testified that [Decedent] showed no signs of
mental incapacity at the time that he signed the February 4,
2008 will. Attorney D’Ambrosio reported to [Appellant] that
[Decedent] had signed such a will. Attorney D’Ambrosio did
not charge [Decedent] any fee for the preparation of the
will. [Decedent] never mentioned to the Brabenders, who
were his good friends, that Attorney D’Ambrosio revised his
Will or that Attorney D’Ambrosio was his attorney.
Orphans’ Court Opinion, 8/1/14, at 1-6 (internal citations omitted).
On May 6, 2014, the Orphans’ Court entered an order denying
Appellant’s Petition to Revoke Letters Testamentary and for Probate of the
February 4, 2008 will. After Appellant filed a timely notice of appeal from
the Orphans’ Court’s May 6, 2014 order, the Orphans’ Court ordered
Appellant to file a concise statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
complied and raised the following claims in her Rule 1925(b) statement:
1. Whether proponents of an earlier will met their burden of
proving that [Decedent] was incompetent at the time he
executed his final will on February 4, 2008[?]
2. Whether proponents of an earlier will met their burden of
proving that the will executed by [Decedent] on February 4,
2008 was not a valid will under the law of Pennsylvania[?]
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3. Whether the [Orphans’] Court should have excluded
evidence of a prior dispute in 2000 between [Decedent] and
[Appellant] in ruling on the validity of a 2008 will in which
[Appellant] was the sole beneficiary[?]
Appellant’s Rule 1925(b) Statement, 6/19/14, at 1 (some internal
capitalization omitted).
Appellant now raises the following claim to this Court:
Whether the [Orphans’] Court made an error of fact when it
found that a 2000 will left “next to nothing” when it had left
[Appellant] a $100,000.00 bond, and this error led it to
invalidate the 2008 will[?]
Appellant’s Brief at 4.
On appeal, Appellant’s claim is that the Orphans’ Court “made an error
of fact” in its Rule 1925(a) opinion. Appellant did not raise this claim in her
court-ordered Rule 1925(b) statement. Instead, Appellant’s Rule 1925(b)
statement simply claimed: 1) that the “proponents of [the] earlier will”
failed to meet their “burden of proving that [Decedent] was incompetent at
the time he executed his final will on February 4, 2008;” 2) that the
“proponents of [the] earlier will” failed to meet their “burden of proving that
the will executed by [Decedent] on February 4, 2008 was not a valid will;”
and, 3) that the Orphans’ Court committed an evidentiary error during the
hearing. Appellant’s Rule 1925(b) Statement, 6/19/14, at 1 (some internal
capitalization omitted). Therefore, since Appellant failed to raise the current
claim in her court-ordered Rule 1925(b) statement, the claim is waived on
appeal. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule
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1925(b) s]tatement . . . are waived”); Commonwealth v. Castillo, 888
A.2d 775 (Pa. 2005) (in order to preserve their claims for appellate review,
appellants must comply whenever the trial court orders them to file a [Rule
1925(b) statement]. Any issues not raised in a Pa.R.A.P. 1925(b) statement
will be deemed waived”) (internal quotations and citations omitted); see
also In re Estate of Boyle, 77 A.3d 674 (Pa. Super. 2013) (same).1
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
____________________________________________
1
Moreover, even if Appellant’s issue on appeal were not waived, it would be
meritless for the reasons set forth in the trial court’s thorough and cogent
opinion. See Trial Court Opinion, 8/1/14.
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