J-A27030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF PETER S. WHITBY IN THE SUPERIOR COURT

OF PENNSYLVANIA

v.

APPEAL OF: ROBERTA LAROCCA

No. 561 EDA 2018

Appeal from the Order Dated January 19, 2018

In the Court of Common Pleas of Montgomery County

Orphans' Court at No: 2011-X3807

BEFORE: BOWES, and STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 22, 2019

Appellant, Roberta LaRocca, appeals pro se from the January 19, 2018 

order assessing surcharges against Appellant and her husband, Richard 

LaRocca (“Richard”), and imposing a constructive trust on property located at 

78 West Indian Lane, Norristown, Montgomery County, Pennsylvania. We 

affirm. 

Appellant and Richard engaged in an elaborate scheme to 

misappropriate funds from the decedent, Appellant’s stepfather Peter S. 

Whitby (“Peter”). The record reflects that the couple misappropriated nearly 

$1.5 million from Peter and spent it on lavish renovations to their home. The 

trial court recited the pertinent facts: 

Peter S. Whitby (hereinafter “Peter”) was in declining health 

and having difficulty managing his affairs when he named his 

step-daughter, [Appellant] and her then-husband Richard 
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LaRocca as co-agents under a power of attorney signed on July 

11, 2006. 

After the death of Peter on October 11, 2002, his son, 

Kenneth Whitby (hereinafter “Kenneth”), one of the co-executors 

of his estate, sought an order compelling [Appellant] and Richard 

to file an account with respect to their handling of Peter’s assets. 

The former co-agents failed to file an account in accordance with 

the court’s order dated June 6, 2012. On November 2, 2012, the 

court held both [Appellant] and Richard in contempt of that order. 

[***]

There is more to be said about the procedural history of this 

matter. However, it is important to note at the outset that, during

the course of this lengthy litigation initiated by Kenneth against 

[Appellant] and Richard, Roberta filed for divorce in the 

Montgomery County Court of Common Pleas, without assistance 

of counsel. Less than a year later, a judge of the Family Division 

granted the divorce and approved a property settlement 

agreement in which Richard agreed to transfer title to all of the 

real estate owned by the couple to [Appellant’s] sole name. Thus, 

[Appellant] and Richard agreed effectively to render Richard 

judgment-proof, and to have another division of this court 

approve the retitling of their home. This action contravened the 

order entered by the Honorable Stanley R. Ott on January 10, 

2014, which enjoined the transfer of the assets they owned 

pending the resolution of this litigation. In his testimony before 

the undersigned, Richard acknowledged that the marital 

settlement agreement regarding the ownership of their real 

property was signed after the date of Judge Ott’s order. Richard 

also agreed that, despite the express terms of the marital property 

agreement, he and [Appellant] had a ‘side agreement’ regarding 

the ultimate distribution of certain of their assets, which he did 

not explain. 

[***]

This court does not find credible or particularly relevant 

[Appellant’s] explanation that, although she allows Richard to stay 

in the home, they are not husband and wife. More believable and 

congruous is a scenario whereby the parties obtained a sham 

divorce by proceeding pro se and entered into a sham property 

agreement while deliberately misleading the court and opposing 
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counsel for months regarding the fact that Richard continued to 

live in the marital home. 

[***]

Kenneth, Kay [Peter’s wife] and [Appellant] reached a 

stipulation that was filed with the court on January 8, 2016, 

regarding many of the relevant facts. By the start of the hearing, 

Richard, who was representing himself, had not agreed to the 

stipulation. However, during the hearings, Richard did agree and 

the stipulation was made a part of the record and introduced into 

evidence as Exhibit RO-32. The facts as stipulated are as follows: 

 Peter died on January 5, 2011. He was survived by 

Kay, his wife of 27 years, and by five other children 

from a prior marriage. Peter’s daughter, Elizabeth, 

renounced her right to serve as executrix of his estate. 

On May 20, 2011, Kenneth and Kay qualified as 

executors and received letters testamentary. 

 Peter married Kay on June 4, 1983. Kay’s children 

from her prior marriage include her daughter, 

[Appellant]. [Appellant] was married to Richard in 

1986. 

 Peter and Kay resided at Shannondell at Valley Forge 

(“Shannondell”), an assisted care facility located in 

Eagleville, Montgomery County, from early 2005 until 

Peter’s death in 2011. 

 On May 2, 2006, [Appellant] became Peter’s agent 

under a limited power of attorney to conduct certain 

business for him related to litigation over Peter’s 

interest in real property in Glenside known as ‘Roberts 

Block.’ 

 On July 7, 2006, [Appellant] emailed attorney James 

Walker from the law firm of Hamburg Rubin Mullin 

Maxwell & Lupin (hereinafter ‘Hamburg Rubin’) that 

‘Rich and I will act as co-attorneys for Pete.’ On July 

11, 2006, Peter signed a durable general power of 

attorney appointing [Appellant] and Richard as his 

agents. 
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 As of July 11, 2006, Peter’s and Kay’s assets included, 

inter alia: 

o A brokerage account at AG Edwards held in 

Peter’s name alone which then was valued at 

approximately $665,960.07; 

o An IRA and a SEP IRA held at Raymond James 

in Peter’s name alone but of which Peter named 

Kay the sole beneficiary upon his death and 

which had a combined value of roughly

$589,171; 

o A ‘Gold Checking’ account at Citizens Bank titled 

in Peter’s and Kay’s names as joint tenants with 

rights of survivorship, which had a value of 

approximately $27,997.00. 

o A Citizens Bank money market account titled in 

Peter’s and Kay’s names as joint tenants with 

rights of survivorship which had a value of 

approximately $79,177.00; and 

o An interest as mortgagee (in Peter’s name only) 

in the Roberts Block property. 

 On July 14, 2006, represented by Hamburg Rubin and 

with [Appellant] acting as his agent, Peter began 

mortgage foreclosure proceedings related to the 

Roberts Block property. [Appellant] verified the 

foreclosure complaint as agent. In this fiduciary 

capacity, [Appellant] also verified Peter’s reply to new 

matter and counterclaim on October 13, 2006. In 

addition to the mortgage foreclosure actions, 

[Appellant] also acted as agent for Peter with respect 

to obtaining fire insurance and pursuing a claim 

following an August 2006 fire at the Roberts Block 

property. The Roberts Block litigation included three 

separate civil actions filed in the Court of Common 

Pleas of Montgomery County, Civil Division, at docket 

nos. 2006-20490, 2007-03112, and 2008-11763. On 

November 1, 2006, [Appellant] as ‘P.O.A. for Peter 

Whitby’ signed a ‘Sworn Statement and Proof of Loss’ 

relating to the fire claim. On November 6, 2006, 

[Appellant] submitted to an examination under oath 
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in connection with the claim. [Appellant] eventually 

consented to a settlement on behalf of Peter which 

resulted in the following payments: 

 A check for $253,463.38 which Hamburg Rubin 

delivered to Richard on April 24, 2007, and which 

Richard deposited into Peter’s and Kay’s joint account 

at Citizen’s Bank; and 

 A check for $151,996 which Richard deposited into 

Peter’s and Kay’s joint account at Citizens Bank on 

December 11, 2008. 

The stipulation set forth the following with regard to 

transfers from accounts in Peter’s sole name and from those in 

joint names with Kay: 

 Between January 10, 2007 and February 25, 2008, 

$682,404.84 was transferred from Peter’s AG 

Edwards account in to Peter’s and Kay’s joint accounts 

at Citizens Bank. 

 Between November 13, 2007 and October 20, 2008, 

$555, 657.21 was transferred from Peter’s Raymond 

James IRAs to Peter’s and Kay’s joint accounts at 

Citizens Banks. 

 Beginning in July 2006, substantial amounts were 

transferred from Peter’s and Kay’s joint accounts at 

Citizens Bank to Citizens Bank accounts ending in the 

numbers 3731 and 3723 in the name of Richard 

LaRocca. 

 [Appellant’s] signature, either in her individual 

capacity or as agent for Peter, does not appear on any 

checks or withdrawal slips used to effectuate the 

transfers from the Whitbys’ joint account to the 

accounts ending in numbers 3731 and 3723. 

 In addition to her involvement as agent for Peter in

the Roberts Block civil actions, [Appellant] began 

signing checks payable to Peter’s health care and 

assisted care providers, as his agent on April 26, 

2010. (That the checks that [Appellant] as agent 

wrote to the health care aides and care providers were 
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for Peter’s benefit is not disputed and these checks 

are not at issue in this litigation). 

The objectants assert, and Richard does not deny, that after 

a copy of the power of attorney was provided to the investment 

advisors, Richard transferred Peter’s investment funds to a joint 

account of Peter and [his wife] at Citizens Bank. There is no 

dispute that Richard also deposited into the Whitbys’ account to 

two checks received with respect to the fire insurance litigation. 

As stipulated by the parties, and acknowledged by Richard, the 

transfers from assets belonging solely to Peter into the Whitbys’

joint account totaled $1,642,521.43 between January 1, 2007 and 

December 11, 2008. 

These transfers made by Richard as agent may be referred 

to as ‘step one’ of the scheme. Although the monies were 

transferred to a joint account of Peter and Kay, in which Richard 

and [Appellant] had no interest, the transfers are significant. It 

was established that Richard thereafter made the ‘substantial’ 

transfers from the Whitbys’ joint accounts at Citizens Bank to his 

own accounts at Citizens Bank using his online profile. Richard’s 

evasiveness and equivocation were evident in his attempt to deny 

that he made these transfers ‘under the power of attorney.’ [....] 

Richard directed the bank statements to be addressed to Peter but 

sent to 79 West Indian Lane, an address that [Appellant] used to 

receive mail but at which she advised that she did not reside. As 

a result of presenting himself to Citizens Bank as a fiduciary for 

Peter, Richard gained the authority to make transfers from these 

joint accounts, and exercised it, primarily, by logging in online. 

These online transfers may be considered ‘step-two’ of the 

scheme.

From January 2007 through February 2009, Richard took a 

total of $902,860.27 of Peter’s funds from his joint accounts at 

Citizens Bank and placed the money in two Citizens Bank accounts 

in his own name[....]

From August 2007 through November 2010, Richard 

transferred at least an additional $592,200 of Peter’s funds into 

his own accounts[....] Although counsel for the objectants assert 

that the total is even higher, there is no dispute that the bank 

records reflect transfers by Richard into accounts in his own name 

in the total amount of $1,432,060.27. 

[***]
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Richard, having misappropriated Peter’s funds, next 

engaged in ‘step three’ of the scheme—using the funds for his and 

[Appellant’s] extravagant home renovations in an effort to conceal 

his ill-gotten gains and defeat any party who would seek to 

recover Peter’s funds. Richard used the funds in his bank accounts 

to spend more than $1 million on contractors and materials related 

to improvements at his and [Appellant’s] home at 78 West Indian 

Lane over a period of two and a half years from September 2006 

through March of 2009. 

Finally, in ‘step four’ of the scheme, [Appellant] and Richard 

agreed to a sham divorce and to impoverish Richard by 

transferring their property to [Appellant] as part of their strategy 

to divest Richard of any assets that would otherwise be available 

to repay Peter’s estate. 

Trial Court Opinion, 1/19/18, at 1-10 (record citations omitted). 

After the November 2, 2012 order holding Appellant and Richard in 

contempt, the orphans’ court directed them to file an account on or before 

January 20, 2013. They failed to meet that deadline, but Richard filed an 

account on May 3, 2013, and Appellant filed an account on May 6, 2013. On 

January 10, 2014, the orphans’ court filed an order forbidding Appellant and 

Richard to transfer any assets pending the outcome of this action. Appellant 

and Richard violated that order in their 2015 divorce proceedings. Kenneth 

filed objections to Appellant’s account on June 28, 2013, and Kenneth and Kay 

filed supplemental objections to Appellant’s account on August 31, 2016.1 The 

orphans’ court held nine days of hearings in December of 2016 and January 

of 2017. 

____________________________________________

1

 The matter apparently was drawn out by Appellant’s and Richard’s failure 

to cooperate with various discovery requests. 
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Appellant’s pro se brief contains only her own self-serving account of 

the facts. She blames Richard for the wrongdoing and claims she was unaware

of his activities. Appellant cites no law in support of her appellate arguments, 

and, for that reason alone, she cannot obtain relief on this appeal. In re R.D., 

44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) 

(“We will not act as counsel and will not develop arguments on behalf of an 

appellant. Moreover, when defects in a brief impede our ability to conduct 

meaningful appellate review, we may dismiss the appeal entirely or find 

certain issues to be waived.”). 

Even were we to consider the merits, Appellant could not obtain relief. 

The governing standard is well settled: 

When an appellant challenges a decree entered by the 

[o]rphans’ [c]ourt, our standard of review requires that we be 

deferential to the findings of the [o]rphans’ [c]ourt. 

[We] must determine whether the record is free from legal 

error and the court’s factual findings are supported by the 

evidence. Because the [o]rphans’ [c]ourt 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 Staico, 143 A.3d 983, 987 (Pa. Super. 2016) (internal citations and 

quotation marks omitted), appeal denied, 166 A.3d 1221 (Pa. 2017). 

The evidence, as set forth extensively above, overwhelmingly refutes 

Appellant’s assertion that she was unaware of Richard’s misappropriation of 
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funds. In addition to the facts described above, we observe that Richard had 

been unemployed since 2004. Despite this, Appellant claims she did not 

question where Richard got the funds to pay for a seven-figure renovation to 

their home. 

Because Appellant has not developed a legal argument, and because the 

record overwhelmingly fails to support her account of the facts, we affirm the 

orphans’ court’s order. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/19