J-A27019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF NICHOLAS A. NOTARNICOLA, A/K/A NICHOLAS A. NOTARNICOLA, JR., A/K/A NICHOLAS NOTARNICOLA, DECEASED IN THE SUPERIOR COURT OF PENNSYLVANIA

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 de cree, directing

the distribution of assets in the estate of Nichola s A. Notarnicola (“the

Estate”), and denying Appellant’s motion for discov ery as moot. Upon

review, we quash the appeal for lack of jurisdictio n.

The trial court summarized the facts and procedura l history of this

case as follows:

On March 15, 2001, Nicholas A. Notarnicola (“Decede nt”) 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 “tra nsact all of my business and to manage all my property and af fairs as I might do if personally present....” The POA furt her

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1 Appellant avers this appeal lies from an order en tered on November 25, 2014. However, as discussed below, the appeal lies from the order dated August 18, 2014. We have changed the caption accor dingly.J-A27019-15

- 2 - enumerate[d] several specific grants of power to Za nolli, 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 respe ct 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 myJ-A27019-15

- 3 - 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, togethe r [with] all other remaining assets, are to be included in t he residuary estate, which then is to be distributed i n equal shares to the following six designated beneficiarie s: 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 radio active materials in its operations. Decedent was exposed to such materials and later developed several health proble ms, including bladder cancer. Although it is not entir ely clear from the record, sometime prior to 2008, [Appellant ] became acquainted with Decedent and undertook to ca re for him as a live-in companion. In 2008, [Appellant] b ecame aware of the United States Department of Labor’s En ergy Employees Occupational Illness Compensation Program s Act (“EEOICPA”), which provides monetary compensation t o individuals beset with illnesses caused by certain enumerated workplace conditions.

[Appellant] assisted Decedent in preparing and subm itting an application for benefits, on which she was desig nated 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 1 2, 2008, Decedent purchased a Prudential annuity contract in theJ-A27019-15

- 4 - amount of $150,000.00, on which Decedent listed [Appellant] as the primary beneficiary (the “Annuit y”). Decedent and [Appellant] also allegedly opened a jo int checking account, although the record contains no e vidence of such an account.

In early August 2009, because of her own advanced a ge and personal circumstances, [Appellant] moved out o f 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 nu rsing facility in Monroeville, Pennsylvania. Although communication was difficult, Decedent and [Appellan t] remained in contact. On or about August 3, 2009, Z anolli, relying on the POA, removed [Appellant] as the prim ary beneficiary of the Annuity and substituted himself as primary beneficiary. Sometime prior to September 2 009, Zanolli removed himself and substituted the Estate as the primary beneficiary. No application or form reques ting the latter change is included in the record, but the fi nancial statements provided by Prudential beginning in Sept ember 2009 list the “Estate” as the primary beneficiary. Around the same time, Zanolli, again relying on the POA, a ccessed and negotiated the Annuity’s cash value to provide for Decedent’s healthcare needs, which included Deceden t’s placement in the skilled nursing facility and, ulti mately, hospice care. All of Zanolli’s transactions in cha nging the beneficiary of the Annuity and negotiating its cash value were approved by Prudential.

Decedent died on October 6, 2010. Letters Testamen tary were granted to Zanolli as Executor of Decedent’s w ill 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 tran sferred into Decedent’s residuary estate. Zanolli publishe d notice of the probating of Decedent’[s] will on January 15, J anuary 22, and January 29, 2011, in the local Valley News Dispatch newspaper. On May 16, 2011, [Appellant], via her c ounsel, sent a letter to Zanolli notifying him of her claim to both the Annuity and the joint checking account. Despite re ceipt 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 [Appel lant], of hisJ-A27019-15

- 5 - intent to file his First and Final Account. Zanoll i then filed the First and Final Account, together with a propos ed distribution schedule, on October 2, 2012. No obje ctions or other challenges to the account were filed with the [c]ourt, which subsequently confirmed the account and entere d a decree of distribution on November 2, 2012. The de cree 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 decre e on November 21, 2012, in which she again assert[ed] he r 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 immedia tely apparent from the record, the [c]ourt did not sched ule a hearing on the exceptions. It also does not appear that the auditor conducted an audit of the First and Final A ccount, held a hearing on [Appellant’s] exceptions, or prep ared an auditor’s report. No further action was taken on t he exceptions until the Estate filed [a] motion to dis miss on April 4, 2014, approximately 16 months after [Appel lant] filed her exceptions. [Appellant] responded to the Estate’s motion and filed a motion for leave to conduct disc overy. The [c]ourt heard argument on May 27, 2014, and scheduled a hearing on the motion to dismiss for Au gust 1, 2014. Thereafter, the parties submitted additional filings and documents to the [c]ourt and agreed that they w ould rest on their written submissions in lieu of a hear ing.
Trial Court Opinion, 8/18/2014, at 2-7 (record cita tions omitted).

On August 18, 2014, the trial court entered an ord er and opinion

granting the Estate’s motion to dismiss. The trial court also dismissed

Appellant’s exceptions by operation of law and on t he merits and denied

Appellant’s discovery request as moot. The trial c ourt directed the Clerk of

Orphans’ Court “to enter on the docket that [Appell ant’s] exceptions were

deemed denied by operation of law as of March 21, 2 013.” Trial CourtJ-A27019-15

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Order, 8/18/2014, at 1. On September 8, 2014, Appe llant 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 ente rtain it.” In re Estate of

Allen , 960 A.2d 470, 471 (Pa. Super. 2008). The trial c ourt entered an

order on November 2, 2012 confirming the First and Final Account filed by

the executor and directing distribution of the Dece dent’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). Th e court issued no ruling on

the exceptions. Accordingly, they were deemed denie d by operation of law

on the 121st day after their filing, specifically M arch 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 Decembe r 23, 2014 fell outside

the 30-day appeal period. See Pa.R.A.P. 903.

Moreover, we have previously determined,J-A27019-15

- 7 - ‘in a decedent's estate, the confirmation of the fi nal account of the personal representative represents the final order, subject to exceptions being filed and disposed of b y the court.’ In re Estate of Habazin
, 679 A.2d 1293, 1295 (Pa. Super. 1996). Rule 7.1(a) of the Pennsylvania Orpha ns' Court Rules generally provides that ‘no later than twenty (20) days after entry of an order, decree or adjudi cation, 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 Fir st and Final

Account became appealable on the day the court disp osed of Appellant's

exceptions, i.e. , on August 18, 2014. Appellant filed her notice o f appeal on

December 23, 2014, also outside of the 30-day appea l period. 2 See

Pa.R.A.P. 903. Thus, for all of the foregoing reas ons, we lack jurisdiction to

entertain Appellant’s appeal.

Finally, we must address the Estate’s motion to di smiss for Appellant’s

failure to file a designation of the contents of th e 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 Appell ant failed to designate

the contents of the reproduced record timely. On A pril 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 Appea l, 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 fil e a second set of exceptions to toll the 30-day appeal period.J-A27019-15

- 8 -

issued a per curiam order denying relief without prejudice for the Est ate to

raise the issue before the current panel. The Esta te has not raised this issue

again. Regardless, because we lack jurisdiction to entertain Appellant’s

appeal, the Estate’s motion to dismiss is moot. Th us, we reaffirm the denial

of the Estate’s motion to dismiss for failing to de signate the reproduced

record in a timely manner.

Appeal quashed. Motion to dismiss denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/2016