J-A30019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF MARIE HIRNYK,         :    IN THE SUPERIOR COURT OF
 DECEASED                               :         PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: ANGELLA PIOTROWSKI,         :
 EXECUTRIX OF THE ESTATE OF             :
 MARIA HIRNYK, DECEASED                 :
                                        :
                                        :    No. 84 WDA 2018


                   Appeal from the Order, January 10, 2018,
              in the Court of Common Pleas of Allegheny County,
                   Orphans' Court at No(s): No. 34 of 2013.


BEFORE:    SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED APRIL 16, 2019

     Angella Piotrowski, Executrix of the Estate and daughter of Maria Hirnyk,

Deceased, appeals from the orphans’ court’s order denying her request to

return over $90,000 from a joint bank account held in the name of Maria

Hirnyk and Marjorie Weiblinger to Hirnyk’s estate and further refusing to

surcharge Weiblinger for allegedly engaging in self-dealing with those funds.

After a thorough review, we affirm.

     This matter was previously before the Court on an appeal from an order

admitting Hirnyk’s 2009 will for probate. We have restated below the facts

from that case, which we supplemented with additional facts pertinent to the

issues now before us:

           Hirnyk, a Ukrainian immigrant, was born on October 12,
     1922. Hirnyk spoke broken English and had a limited ability to
     read and write English. Hirnyk also did not drive and required
     assistance with transportation, administering her medicine,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A30019-18


     organizing her bills, and corresponding in writing with her family.
     Hirnyk executed the 2009 Will, which named her daughter,
     Angella Piotrowski (“Piotrowski”), as the sole legatee.

           In 2009, Weiblinger met Hirnyk at church. Weiblinger began
     to assist Hirnyk with her shopping needs approximately once or
     twice a week. In 2010, Weiblinger increased her assistance by
     helping Hirnyk with, inter alia, her banking, transportation to
     doctors’ appointment, paying bills, and writing checks.
     Thereafter, Hirnyk gave Weiblinger power of attorney.

            In August 2011, Hirnyk revoked the power of attorney after
     accusing Weiblinger of theft, and alleging that Hirnyk signed the
     power of attorney while hospitalized with diminished capacity. As
     a result, Nadia Peternel (“Peternel”), a longtime family friend,
     began to assist Hirnyk with her daily needs including banking,
     driving, and household chores. In September 2011, Hirnyk gave
     Peternel power of attorney to act as Hirnyk’s agent. In early 2012,
     Hirnyk’s doctor, Dr. Dushan Majkic (“Dr. Majkic”) noted that
     Hirnyk exhibited symptoms of forgetfulness, confusion, paranoia,
     and depression Thereafter, Hirnyk, believing that Peternel was
     stealing from her, revoked Peternel’s power of attorney [in May
     2012].

            Weiblinger resumed assisting Hirnyk with her needs. In
     March 2012, a joint bank account was opened [at Citizens Bank,
     being account number 0168], in Weiblinger and Hirnyk’s names,
     with deposits totaling over $90,000.          [An initial deposit of
     $47,777.71 was made.         Another deposit in the amount of
     $48,526.79 was made on March 23, 2012. Both of these deposits
     came from Hirnyk’s funds]. At Hirnyk’s direction, Weiblinger
     contacted Attorney Carol Sikov Gross (“Attorney Gross”), a
     certified elder law attorney, to prepare legal documents for
     Hirnyk. On June 8, 2012, Hirnyk executed a will (“2012 Will”) and
     a power of attorney naming Weiblinger as her agent. In the 2012
     Will, Hirnyk excluded any bequest to Piotrowski, and indicated that
     Weiblinger would receive a substantial portion of Hirnyk’s estate.
     [Shortly thereafter, Hirnyk’s health began to decline. Beginning
     in July through the time of her death, Hirnyk was admitted to
     various medical and skilled nursing facilities. On August 18, 2012,
     Weiblinger transferred $60,720 from the joint account to a
     Citizens’ Bank savings account ending 4104 in Weiblinger’s name
     only.]    Subsequently, [on September 20, 2012] Weiblinger
     removed Hirnyk from the joint bank account [by signing a new
     signature card with only Weiblinger’s name on it. At that time,

                                    -2-
J-A30019-18


        there was $30,078 remaining in the account].       Hirnyk died on
        October 31, 2012.

              [Shortly after Hirnyk’s death, on November 16, 2012,
        Weiblinger returned $60,000 of the funds previously transferred
        from Citizens Bank account 0168 back to that account.]

               On November 29, 2012, the 2009 Will was admitted to
        probate [at docket 7115 of 2012] and Piotrowski was granted
        letters testamentary. Weiblinger filed a Petition to Open Probate
        Record to Admit Later Will pursuant to 20 Pa.C.S.A. section 3138.
        ...

In re Estate of Maria Hirnyk, 376 WDA 2015, unpublished memorandum at

1-3 (January 29, 2016).

        After a hearing, the hearing officer issued an order finding that Hirnyk

had testamentary capacity, but that the 2012 Will was the product of undue

influence.    The orphans’ court agreed, dismissed Weiblinger’s appeal, and

directed the estate to proceed with the 2009 Will. Upon further appeal to this

Court, we affirmed.

        Thereafter, on November 2, 2016, Piotrowski filed a petition seeking the

return of the funds Hirnyk deposited into Citizens Bank account 0168.1

Specifically, Piotrowski claimed that Hirnyk did not intend to grant Weiblinger

a right of survivorship in the funds upon her death, and that the joint account

was the product of undue influence, fraud and/or a breach of Weiblinger’s

fiduciary duty to Hirnyk.        Weiblinger filed an answer alleging that Hirnyk




____________________________________________


1   Allegheny County Orphans’ Court No. 7115 of 2012.

                                           -3-
J-A30019-18


created the account on her own volition, and consequently, the petition should

be dismissed.

        On January 12, 2017, Weiblinger filed a petition to release funds,

seeking to unfreeze Citizens Bank account 0168, which had remained frozen

since January 4, 2013, by order of court.2 Weiblinger claimed that these funds

were properly payable to her as the sole surviving owner of the joint account

in accordance with the Multi-Party Account Act (“MPAA”).

        Additionally,   Piotrowski    had      pending   objections    to   the   account

previously filed by Weiblinger as power of attorney.                  In her objections,

Piotrowski challenged a number of disbursements Weiblinger made from

various accounts pursuant to the 2012 power of attorney, including

Weiblinger’s actions with respect to Citizens Bank account 0168. Among other

things, Piotrowski claimed that Weiblinger engaged in self-dealing by

transferring the funds in that account to herself, and should be surcharged.

        By order dated March 31, 2017, the orphans’ court consolidated all of

these outstanding matters for trial.3 On August 30 and 31, 2017, the orphans’

court conducted a hearing.

        By order December 18, 2017, the orphans’ court denied Piotrowski’s

petition for the return of funds and granted Weiblinger’s petition for the

release of funds and unfroze the Citizens Bank account 0168, effective January


____________________________________________


2   Allegheny County Orphans’ Court No. 00034 of 2013.
3   These matters were consolidated No. 00034 of 2013.

                                            -4-
J-A30019-18


16, 2018. The orphans’ court surcharged Weiblinger $5,000 for questionable

expenditures from various bank accounts, including Citizens Bank account

0168, to be paid to the estate from the released funds. Piotrowski filed a

motion for reconsideration, which the orphans’ court denied.

         On January 11, 2018, Piotrowski timely filed a notice of appeal. Both

Piotrowski and the orphans’ court complied with Pa.R.A.P. 1925.

         On appeal, Hirnyk raises the following three issues:


   I.       Whether the trial court erred by finding that the funds in
            Citizens Bank account ending 0168 belonged to Marjorie
            Weiblinger by operation of the right of survivorship provisions
            of the Pennsylvania Multi-Party Account Act, 20 Pa.C.S.A. §
            §6301, et seq.?

   II.      Whether the trial court erred in failing to return to the Estate
            the funds contained in Citizens Bank account ending 0168 when
            these funds were transferred by Weiblinger to herself in acts of
            self-dealing and without authority under the power of attorney?

   III.     Whether the trial court erred in failing to surcharge Weiblinger
            for self-dealing transactions undertaken by Weiblinger when
            she transferred to herself approximately $90,078.25 of
            Decedent’s funds without authority under a power of attorney?

See Hirnyk’s Brief at 5.

         Our review of orphans’ court matters is limited:

         Our standard of review of the findings of an Orphans' Court is
         deferential. 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


                                        -5-
J-A30019-18


      law on which the [court] relied are palpably wrong or clearly
      inapplicable, we will reverse the [court's] decree.

In re Ware, 814 A.2d 725, 731 (Pa. Super. 2002) (internal citations and

quotations omitted). With this in mind, we consider Piotrowski’s issues.

      In her first appellate issue, Piotrowski contends that the trial court erred

in applying the MPAA in this case.        According to Piotrowski, Weiblinger

removed Hirnyk’s name from Citizens Bank account 0168 prior to Hirnyk’s

death, thereby terminating the joint nature of the account. As a result, at the

time of death, the form of the account, as determined under 20 Pa.C.S.A.

section 6305, was not a joint account. Piotrowski’s Brief at 19, 23. Thus, the

right of survivorship provision in the MPAA did not apply to Citizens Bank

account 0168 or the transfers at issue, and the funds held therein should be

returned to the estate. Piotrowski’s Brief at 19, 24. In response, Weiblinger

contends that those funds are hers by virtue of the MPAA and the right of

survivorship vested in Weiblinger.

      In Pennsylvania, the ownership of funds held in a multi-party account is

governed by the MPAA. This statute defines a joint account as “an account

payable on request to one or more of two or more parties whether or not

mention is made of any right of survivorship.” 20 Pa.C.S.A. § 6301. During

the lifetime of all parties, “[a] joint account belongs . . . to the parties in

proportion to the net contributions by each to the sum on deposit, unless there

is clear and convincing evidence of a different intent.” 20 Pa.C.S.A. § 6303(a)

(emphasis added). Consequently, the depositor in a joint account is presumed



                                      -6-
J-A30019-18



to retain ownership of the sums he or she has placed on deposit during his or

her lifetime in proportion to the total fund.

      “Upon the death of a party to a joint account, the amount in the

account “belongs to the surviving party or parties as against the estate of the

decedent, unless there is clear and convincing evidence of a different intention

at the time the account is created.” 20 Pa.C.S.A. § 6304(a) (emphasis added).

This section establishes a statutory presumption that survivorship rights are

intended when a joint account is created. In re Estate of Heske, 647 A.2d

243, 244 (Pa. Super. 1994). This presumption can be overcome only by clear

and convincing evidence of a contrary intent. 20 Pa.C.S.A. § 6304(a); In Re

Falluco, 791 A.2d 1177, 1180 (Pa. Super. 2002). This burden is on the one

who opposes the presumption of survivorship. In Re Estate of Meyers, 642

A.2d 525, 528 (Pa. Super. 1994). The form of the account at the death of a

party determines whether a right of survivorship exists under the statute. 20

Pa.C.S.A. § 6305.

      In this case, the orphans’ court concluded that, based upon the

testimony, “that [Hirnyk] intended to make [the account] a joint account.”

Trial Court Opinion, 12/18/17, at 4. The orphans’ court further concluded

that, while recognizing that Weiblinger and Hirnyk had a confidential

relationship and that Hirnyk was heavily influenced by Weiblinger, the

orphans’ court did “not believe that Piotrowski presented clear and convincing

evidence of a different intent at the time the account was created.” Id. In

reaching this conclusion, the orphan’s court explained:

                                      -7-
J-A30019-18


      The issue is what was the intent of the parties, in particular, []
      when the account was opened on March 19, 2012. Other than the
      bank employee who opened the account, who was not called as a
      witness, the only persons present when the account was opened
      were [Hirnyk] and Ms. Weiblinger. Ms. Weiblinger testified that
      on March 19, 2012, she drove [Hirnyk] to two banks. First, they
      went to PNC Bank in Carrick Shopping Center. [Hirnyk] went into
      the bank alone, while Ms. Weiblinger stayed in the car. Then, they
      went to the Citizens Bank inside the Giant Eagle grocery store in
      Brentwood. Ms. Weiblinger went into the store with [Hirnyk] and
      took her to the bank. As [Hirnyk] wanted Ms. Weiblinger to get
      some groceries for her, Ms. Weiblinger left the area of the bank
      and shopped for groceries. When she returned to the bank, the
      bank teller asked her to sign the signature card for the account.
      Ms. Weiblinger told [Hirnyk] that she did not want to sign it. But
      the Decedent said “yeah, yeah, you sign, you sign”; so Ms.
      Weiblinger signed the signature card.

Id. at 3-4. The record supports the orphans’ courts findings; evidently the

orphans’ court found this testimony credible. Additionally, the account, on its

face, stated that it was a joint account to be held by the parties as joint tenants

with the right of survivorship; the signature card was signed by both Hirnyk

and Weiblinger.

      Moreover, and most significantly, Piotrowski did not present any

evidence to indicate that Hirnyk’s intent was anything other than to create a

joint account with the right of survivorship in Weiblinger. Piotrowski herself

admitted that she did not know anything about the account because, as she

testified, she was not there. Piotrowski presented no other evidence regarding

the opening of this account or of a contrary intent by Hirnyk.          Thus, the

orphans’ court applied the MPAA to the funds in Citizens Bank account 0168,




                                       -8-
J-A30019-18



refused to return them to the estate, and directed that they be released to

Weiblinger. See Trial Court Opinion, 12/18/17, at 5.

      However, now, on appeal, Piotrowski shifts her argument regarding the

joint account from the time the account was opened to the time of Hirnyk’s

death. According to Piotrowski, when Weiblinger executed a new signature

card for account 0168, which removed Hirnyk’s name from the joint account

and titled it solely in Weiblinger’s own name, she terminated the joint tenancy

of the account. Piotrowski’s Brief at 22. As a result, Piotrowski argues when

Hirnyk died the funds belonged to Hirnyk and should pass to the estate.

      In support of this position, Piotrowski relies upon Lanning v. West, 803

A.2d 753 (Pa. Super. 2002). There, we stated that where the decedent “was

still living while the joint accounts are opened and closed . . . 20 Pa.C.S.

section 6303(a) [lifetime ownership] controls.” Id. at 761. Further, because

the decedent there “contributed 100% of the funds into the joint accounts,

100% of the joint account belonged to the decedent.” Id. Applying this same

rationale here, Piotrowski contends that the orphans’ court erred in not

returning the funds in Citizens Bank account 0168 to the estate. Piotrowski’s

Brief at 23. Because the joint account was terminated prior to Hirnyk’s death,

the MPAA survivorship provisions do not apply and cannot transfer ownership

of the funds to Weiblinger upon Hirnyk’s death. Piotrowski’s Brief at 24.

      Critically, we observe that, before the orphans’ court, Piotrowski focused

on the creation of the joint account and the propriety of Weiblinger’s handling

of Hirnyk’s funds.    Piotrowski offered no proposed findings of fact or

                                     -9-
J-A30019-18



conclusions of law regarding the termination of Citizens Bank account 0168 or

its nature at the time of Hirnyk’s death. Although Piotrowski briefly addressed

this in her motion for reconsideration, she did not specify this as an appellate

issue in her Pa.R.A.P. 1925(b) statement.

      Pennsylvania Rule of Appellate Procedure 1925 requires that a 1925(b)

statement “concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Pa.R.A.P. 1925(b)(4)(vii). “Issues not included in the statement and/or not

raised in accordance with the provisions of the [Rule] are waived.” Pa.R.A.P.

1925(b)(4)(vii). The Rule 1925(b) statement must be specific enough for the

trial court to identify and address the issue an appellant wishes to raise on

appeal. Tong-Summerford v. Abington Memorial Hosp., 190 A.3d 631,

649 (Pa. Super. 2018) (internal quotations and citations omitted).

      In Tong-Summerford, the appellants raised a general issue regarding

statements made by opposing counsel in their 1925(b) statement. In their

appellate brief however, the appellants specifically argued about certain

statements counsel made during closing argument. Because the appellants

failed to specifically challenge counsel’s statement from the closing argument

in their 1925(b) statement, this Court found that the appellants waived that

claim.

      Similarly, here, Piotrowski only generally stated in her 1925(b)

statement that the orphan’s court erred in applying the right of survivorship

provision under the MPAA.      Piotrowski did not specify that the error was

                                     - 10 -
J-A30019-18



premised upon her contention that the account was not a joint account subject

to the MPAA at the timeof Hirnyk’s death. Consequently, the orphan’s court

did not have the opportunity to address this issue in its 1925(a) opinion. Our

rules mandate that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”       Pa.R.A.P. 302.    Because

Piotrowski did not raise this specific issue with the orphans’ court, she waived

it.

      In her second appellate issue, Piotrowski contends that the orphans’

court erred in concluding that Weiblinger’s transfer of funds out of Citizens

Bank account 0168 and into her name only did not constitute self-dealing.

Piotrowski’s Brief at 33. Additionally, Piotrowski contends that the POA did

not grant Weiblinger the authority to make gifts or transfer funds. Piotrowski’s

Brief at 25.   In response, Weiblinger argues that the evidence of record

supports the trial court’s conclusion that Weiblinger did not engage in self-

dealing.   Moreover, any issue regarding gifting pursuant to the power of

attorney is waived.

      In this issue, Piotrowski first contends that Weiblinger’s transaction with

respect to the funds in Citizens Bank account 0168 constituted an act of self-

dealing. In her objections to Weiblinger’s accounting, Piotrowski asserts that

by withdrawing $60,720.72 from Citizens Bank account 0168 and depositing

it into a separate bank account in Weiblinger’s name only, Weiblinger engaged

in self-dealing. She further asserts that by executing a Citizens Bank Updated

Personal Signature Card and removing Hirnyk’s name from account 0168,

                                     - 11 -
J-A30019-18



which had $33,027.25 remaining in it at that time, Weiblinger effectively

disbursed those funds to herself.        This, according to Piotrowski, also

constituted self-dealing. Piotrowski’s Brief at 33.

      The test of forbidden self-dealing is whether the fiduciary had a personal

interest in the subject transaction of such a substantial nature that it might

have affected his judgment in a material connection. In re Noonan, 63 A.2d

80, 84 (Pa. 1949) (quotations and citations omitted).           With respect to

Weiblinger’s alleged self-dealing, the orphan’s court stated:

      The second and third issues claim that the Court erred in failing
      to return to the Estate the funds contained in Citizen’ Bank
      Account No. x0168 or to surcharge Ms. Weiblinger “when these
      funds were transferred by [Ms.] Weiblinger to herself in acts of
      self-dealing and without authority under the Power of Attorney.”
      While the court found that Ms. Weiblinger breached her fiduciary
      duties in some respects, the Court was not convinced that she was
      guilty of “self-dealing”.

Trial Court Opinion, 2/26/18, at 4-5. We review this conclusion with the same

standard in mind.

      The evidence of record substantiates the trial court’s conclusion that

Weiblinger did not engage in self-dealing. Several of the witnesses testified

that throughout her life, even near its end, Hirnyk was consistently strong-

willed, independent, and always in control of her own decisions. In particular,

Hirnyk was aware of, and in control, of her financial affairs. Weiblinger, on

the other hand, was not financially astute.

      Weiblinger testified that Hirnyk directed Weiblinger to take the funds out

of Hirnyk’s name in an effort to reduce her assets for Medicaid eligibility.

                                     - 12 -
J-A30019-18



Weiblinger testified that she did so, and never treated the funds as her own.

Rather, she always believed that Hirnyk owned and controlled the funds.

Again, the orphan’s court evidently found Weiblinger’s testimony credible.

      Moreover, we note that Weiblinger already held the right of survivorship

and would receive the money upon Hirnyk’s death. Thus, there was no reason

for her to move the funds, unless directed to do so by Hirnyk. Additionally,

Weiblinger returned the funds to account 0168 substantially intact, which is

consistent with the orphan’s courts conclusion that Weiblinger did not engage

in self-dealing.

      In this issue, Piotrowski also challenges Weiblinger’s authority to gift

herself funds. We conclude that this argument is not properly before us.

Weiblinger argues Piotrowski did not raise the power of attorney issue her

1925(b) statement. Therefore, Piotrowski has waived her power of attorney

claim. Pa.R.A.P. 1925(b); see Tong-Summerford, 190 A.3d at 649.

      In her third and final appellate issue, Piotrowski contends that the trial

court erred in not surcharging Weiblinger for her actions with respect to the

funds held in Citizens Bank account 0168.

      Where the record substantiates a finding of self-dealing, the court may

properly surcharge an individual for any amount he accepted in violation of

his fiduciary duty. See In re Estate of Harrison, 745 A.2d 676, 679 (Pa.

Super. 2000).      As discussed above, the orphans’ court concluded that

Weiblinger did not engage in self-dealing with respect to the funds held in




                                    - 13 -
J-A30019-18



Citizens Bank account 0168.           Consequently, the orphans’ court could not

surcharge Weiblinger for self-dealing.4

       For the foregoing reasons, we affirm the order of the orphans’ court.

       Order affirmed.

       Judge Shogan joins this Memorandum.

       Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2019




____________________________________________


4 We note that, where there was a basis for surcharge, the orphans’ court did
so. The orphans’ court surcharged Weiblinger $5,000 where Weiblinger acted
improperly. This included a surcharge of $2,700 for withdrawals she made
from Citizens Bank account 0168, the purpose for which she could not explain.
The remaining $2,300 was for improper withdrawals from other accounts.
Weiblinger did not appeal these surcharges.

                                          - 14 -
