J-A01007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ESTATE OF ROSEMARIE NIXON              :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
 APPEAL OF: CHRISTINA NIXON             :
                                        :
                                        :
                                        :
                                        :
                                        :   No. 364 EDA 2017

                Appeal from the Decree December 21, 2016
           In the Court of Common Pleas of Philadelphia County
                 Orphans' Court at No(s): 1201 PR of 2013

 IN RE ESTATE OF: ROSEMARIE             :   IN THE SUPERIOR COURT OF
 NIXON                                  :        PENNSYLVANIA
                                        :
                                        :
 APPEAL OF: MARY NIXON                  :
                                        :
                                        :
                                        :
                                        :   No. 447 EDA 2017

             Appeal from the Adjudication December 21, 2016
           In the Court of Common Pleas of Philadelphia County
              Orphans' Court at No(s): No. 1201 PR of 2013


BEFORE:   OTT, J., PLATT*, J., and RANSOM*, J.

MEMORANDUM BY OTT, J.:                              FILED JUNE 01, 2018

     This consolidated appeal is brought from the Adjudication of the First

and Final POA [Power of Attorney] Account of Mary Nixon, Agent for Rosemary

Nixon, Deceased, entered December 21, 2016, in the Court of Common Pleas

of Philadelphia County. In the appeal at 447 EDA 2017, Mary Nixon, agent

under power of attorney (POA) for Rosemarie Nixon (Decedent), presents five

issues, more fully discussed below, that challenge, inter alia, the orphans’

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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court’s determination that a surcharge against her in the amount of

$178,505.31 was proper, and the orphans’ court’s evidentiary ruling, limiting

her use of documents and the calling of witnesses due to her failure to comply

with the court’s discovery orders.     In the appeal at 364 EDA 2017, Mary’s

sister, Christina Nixon, co-executor of the Estate, and objectant to Mary

Nixon’s First and Final Account, presents two issues, challenging the denial of

her motion in limine to preclude testimony of Mary Nixon pursuant to the

Pennsylvania Dead Man’s Act and the denial of her motion for summary

judgment.     Sheila Nixon, sister of Mary and Christina, and a residuary

beneficiary under the will of Decedent, has joined in the brief filed by Christina.

Based upon the following, we affirm the Adjudication in the appeal at 447 EDA

2017. We dismiss the appeal at 364 EDA 2017.

      The orphans’ court has fully summarized the facts and procedural

history. See Pa.R.A.P. 1925(a) Opinion, 6/22/2017, at 1-11; Adjudication,

12/21/2016, 1-6.       Therefore, we simply state the facts relevant to our

discussion.

      Mary Nixon and her brother, James Nixon, were co-agents under a

general POA executed by Decedent on January 1, 2010. It appears undisputed

that Mary acted on her own as agent under the POA. Decedent died testate

on April 13, 2013, survived by her nine children: Mary Nixon, Christina Nixon,

James Nixon, Sheila Springer, A.P. Jack Nixon, Brian Nixon, Susan Nixon,

Kathleen Wiederkehr, and Sean Nixon. Mary was named co-executor with her

sister, Christina, and brother, James, but she subsequently resigned as co-

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executor. The orphans’ court’s decree of December 12, 2013, confirms her

resignation.

        A petition to compel accounting was filed by Christina only, as co-

executor, on September 23, 2013. See 20 Pa.C.S. § 5610. On August 20,

2014, Mary filed an Account for the period from January 1, 2010, to April 13,

2013.

        Christina, as co-executor, James, as co-executor, and Sheila, as a

residuary beneficiary, each filed separate objections to the Account on October

3, 2014. Thereafter, a Scheduling and Discovery order, dated November 20,

2014, was entered on November 25, 2014. The Order established a 90-day

discovery deadline which was later extended to March 23, 2015 by stipulation

among the parties, Christina, James, Sheila, and Mary, through their

attorneys.

        On December 1, 2014, Sheila sent the First Set of Interrogatories and

Production of Documents. As there was no response by Mary, on January 28,

2015, Sheila filed a petition to compel discovery and award sanctions. On

March 10, 2015, the orphans’ court dismissed the petition since the parties

had executed the above-mentioned stipulation to extend discovery deadlines.

        On November 5, 2015, Christina filed a motion to preclude Mary from

calling witnesses or offering documents because Mary had not complied with

the discovery orders. By order entered November 9, 2015, the orphans’ court

judge precluded Mary from calling witnesses or presenting documents, but

allowed her to testify as a witness on her own behalf. On November 12, 2015,

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Christina filed a motion in limine to preclude the testimony of Mary pursuant

to Pennsylvania’s Dead Man’s Act, 42 Pa.C.S. § 5930.         In addition, on

November 30, 2015, Christina filed a motion for summary judgment, seeking

a surcharge against Mary in the amount of $197,748.28. Christina’s summary

judgment motion set forth her position that if the orphans’ court granted

Christina’s motion in limine and precluded Mary from testifying, there would

be no genuine issue of any material fact as to a necessary element of Mary

Nixon’s defense, and therefore Christina was entitled to judgment as a matter

of law.

        The orphans’ court conducted a hearing on February 2 and 3,

2016.     The orphans’ court judge allowed Mary to testify provisionally,

deferring decision on Christina’s motion in limine and motion for summary

judgment.      On December 21, 2016, the orphans’ court judge issued his

Adjudication, which assessed a surcharge against Mary in the amount of

$178,505.31. The judge entered separate, contemporaneous orders denying

Christina’s motion in limine and motion for summary judgment.          These

appeals, which have been consolidated by this Court sua sponte, followed.1

See Order, 2/22/2017.



____________________________________________


1 Mary and Christina both timely complied with the orphans’ court’s orders
that directed the filing of Pa.R.A.P. 1925(b) statements of errors complained
of on appeal.




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                              APPEAL AT 447 EDA 20172

       Mary, in her appeal, raises five issues for this Court’s review:


         1. Did the Court commit an abuse of discretion in preventing
       Mary from calling witnesses or offering documents at trial?


          2. Did the Court commit an abuse of discretion in determining
       that Mary’s testimony was “vague and unsupported” based on its
       own preclusion of calling witnesses or offering documents such as
       forensic accounting reports, receipts and monthly financial
       statements?

           3. Did the Court commit an abuse of discretion in determining
       that Mary’s failure to account for credit card transactions, fully
       account for all expenditures and keep receipts of cash transactions
       constituted a breach of fiduciary duty where the Court failed to
       allow the introduction of testimony and documents that would
       have provided the necessary explanations?

          4. Did the Court commit an abuse of discretion in determining
       that Mary’s change of beneficiary for the Best Vest IRA constituted
       self-dealing when Mary offered testimony regarding the reasoning
       behind [D]ecedent’s decision to change the beneficiary but was
       unable to provide supporting testimony or documentation?

          5. Did the Court commit an abuse of discretion in failing to
       recognize the monetary value of over three years of around the
       clock care that Mary provided to [D]ecedent to her personal
       detriment?

Mary’s Brief at 3-4.

       Our scope and standard of review are well settled:


____________________________________________


2Although Christina’s appeal is listed at 364 EDA 2017, sequentially before
Mary’s appeal at 447 EDA 2017, the orphans’ court docket reflects Mary’s
appeal was filed first in time, at 11:16 a.m. on January 20, 2017, and
Christina’s appeal was filed second, at 3:43 p.m. on January 20, 2017.

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       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. The Orphans’ Court decision will
       not be reversed unless there has been an abuse of discretion or a
       fundamental error in applying the correct principles of law.

       This Court’s standard of review of questions of law is de novo, and
       the scope of review is plenary, as we may review the entire record
       in making our determination. When we review questions of law,
       our standard of review is limited to determining whether the trial
       court committed an error of law.

In re Feidler, 132 A.3d 1010, 1018 (Pa. Super. 2016) (en banc) (citations

and quotations omitted), appeal denied, 145 A.3d 166 (Pa. 2016).

       At the outset, it is important to note that although all of the above-

stated issues were preserved in Mary’s Rule 1925(b) concise statement, only

the final issue is set forth in the argument section of Mary’s brief. 3 As such,

the first four issues have been waived.          See In re Estate of Mumma, 125

A.3d 1212, 1217 (Pa. Super. 2015) (failure to address issue in argument

section of brief results in waiver for lack of development on appeal), appeal

denied, 145 A.3d 727 (Pa. 2016).




____________________________________________


3 Mary’s brief discusses three issues. The first two issues address the issues
raised in Christina’s appeal at 364 EDA 2017, namely, the denial of Christina’s
motion in limine and the denial of Christina’s motion for summary judgment.
The final issue listed in Mary’s “Statement of the Questions Involved” is set
forth in her brief, with an added claim of “attorney error.”

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      In the final claim, Mary contends “the orphans’ court erroneously failed

to acknowledge or recognize Mary’s substantial contribution to [Decedent’s]

care over a period of three years, three and a half months, as testified to by

Mary and James and further failed to take into account the extent to which

Mary was victimized by attorney error.” Mary’s Brief at 14. No relief is due.

      First, contrary to the argument of Mary, the orphans’ court did recognize

Mary’s contribution to Decedent’s care. The orphans’ court opined:

             In evaluating the various unexplained and unaccounted for
      disbursements, the Court carefully evaluated the testimony of the
      witnesses who confirmed Mary’s actions as full time caregiver for
      Mrs. Nixon and the extent of the services provided. The hours
      expended by her prevented her from being able to obtain outside
      employment sufficient to generate income to pay for the
      necessary expenses incurred in the upkeep of her own home. The
      Court thus found that expenditures by Mary totaling $19,242.97
      for her PECO, PGW, water, homeowners and automobile insurance
      bills were proper disbursements.

            Generally services by a daughter to her mother are
      presumed to be a gift. Mrs. Nixon notified her children in
      November 2007 that she wanted Mary to care for her, and they
      earned either then or at some future time, as is referenced in the
      Will and Codicils, that she had given Mary the house on Delancy
      Street, and the changes made in her Second Codicil were “in
      recognition and appreciation of the fact that she [Mary] has taken
      care of me since her return to Philadelphia.”

            Notwithstanding the above, any claim that Mary may have
      pursuant to any alleged agreement with Mrs. Nixon is not properly
      before this Court as part of the adjudication of the power of
      attorney account, but rather would be a claim to be asserted
      against Mrs. Nixon’s Estate.

Orphans’ Court Pa.R.A.P. 1925(a) Opinion, 6/22/2017, at 22-23. As Mary’s

argument in her brief focuses on “attorney error,” discussed below, she


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presents no basis upon which to find the orphans’ court’s foregoing analysis

constitutes an abuse of discretion.

      Furthermore, Mary’s argument that she was not permitted to call

witnesses due to “attorney error” in failing to meet the discovery deadline was

not raised in the trial court nor in her Pa.R.A.P. 1925(b) statement, and is

presented for the first time in this appeal. As such, it is waived. See Pa.R.A.P.

302 (“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in

the Statement and/or raised in accordance with the provisions of this

paragraph (b)(4) are waived.”). See also In re Estate of Mumma, supra,

125 A.3d at 1219 (finding issue that was not included in Pa.R.A.P. 1925(b)

statement waived for purposes of appellate review).

      In any event, Mary’s argument of “attorney error” fails because her

former and current counsel were aware of the former counsel’s failure to meet

the court-ordered discovery deadline and had ample opportunity to try to

correct the situation. As the orphans’ court explained:

             Mary failed to respond to discovery requests until after the
      filing of a Motion to Compel by Sheila Springer. Despite providing
      answers to the discovery requests and the extension of the
      deadline for designation of witness[es] and documents to be used
      at trial, Mary failed to comply with either the Court Decrees or the
      parties’ Stipulation requiring the separate designation and
      identification of witnesses and documents for trial. She and her
      counsel, Murray Dolfman, Esquire, were both present at the pre-
      trial conference [o]n October 27, 2015, when the issue of failure
      to designate was brought to the Court’s attention. Despite being
      given an opportunity to respond, no witnesses or document lists
      were provided.

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           Mr. Dolfman made no effort to petition the Court for relief,
     nunc pro tunc, from the Court’s October 28, 2015 Decree
     providing “no further discovery or amendment of witness lists
     shall be permitted except in the interest of justice and/or a
     showing of due diligence in attempting to comply with same.

           When the issue was raised again in Christina’s Motion to
     Preclude, no designations were produced, nor ha[d] there ever
     been any showing of due diligence in attempting to comply by
     Mary or her counsel.

           Mary Nixon, as well as her counsel, Mr. Dolfman, were
     aware of the Court’s case management order and the deadlines
     therein. The sanctions for failure to comply were clearly set forth,
     and even after the October 27, 2015 conference, the Court
     permitted Mr. Dolfman ample opportunity to provide copies of his
     designations or to offer an explanation for his failure to disclose….

           Even after entry of the preclusion order, Mr. Dolfman failed
     to petition the Court for any relief, nunc pro tunc. He withdrew
     from the case, leaving to Mary’s new attorney, Lawrence J.
     Avellone, Esquire, to handle the situation.

            Mr. Avallone filed Exceptions which were denied as
     procedurally improper as the preclusion order was not a final order
     from which an appeal could be taken. He attached to the
     Exceptions Mary’s answers to Interrrogatories. No separate
     designation and identification of the specific witnesses to be called
     at trial was submitted. No designation and identification of any
     documents was attached. Mr. Avallone, in an effort to justify their
     failure to comply with the Court’s Decrees and in support of her
     Exceptions to the Court’s preclusion decree, couched his argument
     as though it was a mere discrepancy in format which would result
     in no prejudice to the other parties. Counsel seemed to ignore
     the fact that his client and her prior counsel had willfully failed to
     comply with the Court’s decrees, and failed to take advantage of
     the numerous opportunities provided to them to request relief.

            At trial, no request was made by Mr. Avellone, in the interest
     of justice, to permit him to call other witnesses, offer documents,
     or even use documents that had been produced by other parties
     in discovery for other non-evidentiary purposes, such as to refresh
     her recollection.

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                                            ****

      It was with the greatest reluctance that the Trial Court enforced
      the Stipulation entered into by the parties, including Appellants
      Mary Nixon and Christina Nixon, thereby precluding evidence.
      Fairness dictated no other result. …

Orphans’ Court Pa.R.A.P. 1925(a) Opinion, 6/22/2017, at 13-15 (footnote

omitted), and 25. Consequently, even had this aspect of Mary’s claim been

properly preserved, we would find it does not warrant any relief.

      Therefore,   we     reject   Mary’s   challenge   to   the   orphans’   court’s

Adjudication, and affirm the Adjudication with respect to Mary’s appeal at 447

EDA 2017.

                               APPEAL AT 364 EDA 2017

      Christina, in her appeal, presents the following two questions:

         1. Does a personal representative waive the ability to assert
      Pennsylvania’s Dead Man’s Rule, 42 Pa.C.S. § 5930, against an
      adverse witness by taking discovery where the personal
      representative only took discovery from third parties and did not
      take discovery from the adverse witness?

         2. If this Court reverses the Orphans’ Court on Question 1
      above, was Appellant Christina Nixon, as personal representative
      of Rosemarie Nixon, Deceased, entitled to summary judgment on
      grounds that Appellee Mary Nixon would not be permitted to
      present evidence at the hearing with respect to Mary’s accounting
      of her actions as agent under power of attorney for Rosemarie
      Nixon?

Christina’s Brief at 3.

      Here, Christina challenges the denial of her two pretrial motions, the

motion in limine to preclude the testimony of Mary based upon the Dead Man’s


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Act, and the motion for summary judgment.                   As mentioned above, the

orphans’ court deferred both motions and permitted Mary to testify

provisionally at the hearing. On the same day the Adjudication was filed, the

orphans’ court entered separate orders denying Christina’s motion in limine

and motion for summary judgment.                 The orphans’ court explained that

Christina’s motion in limine was denied because Christina had waived the

provisions of the Dead Man’s Act by her participation in informal discovery.4

See      Pa.R.A.P.   1925(a)    Opinion,       6/22/2017,   at   23-24;   Adjudication,

12/21/2016, at 3. The orphans’ court further opined that after a hearing on

the merits, Christina’s summary judgment motion was rendered moot. See

Pa.R.A.P. 1925(a) Opinion, 6/22/2017, at 25.

         Notably, even though the $178,505.31 surcharge assessed against Mary

is less than the $197,748.28 amount that Christina sought in her summary

judgment motion, Christina takes the position that if this Court denies Mary’s

appeal at 364 EDA 2017, the issues raised in the instant appeal are moot.

See Christina’s Brief at 5, 15. Christina reiterates this position in her reply

brief:



____________________________________________


4 In support of his finding that Christina’s participation in informal discovery
was sufficient to waive the Dead Man’s Act, the orphans’ court judge cited In
re Bolinger’s Estate, 24 D.&C.3d 760, 762 (Fayette Co. O.C. 1980). See
Pa.R.A.P. 1925(a) Opinion, 6/22/2017, at 23. We recognize there is a split of
authority regarding the issue of whether the Dead Man’s Act is waived by
participation in informal discovery, but further discussion on this issue would
be advisory as we conclude in our discussion below that this issue is moot.

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      [Christina] notes that, if this Court dismisses [Mary’s] appeal,
      [Christina’s] issues are moot. … Though [Christina] disagreed with
      the lower court’s conclusion that $19,242.97 in expenditures were
      appropriate (see ADJUDICATION at p. 11), she would not have
      appealed over this amount. ….

Christina’s Reply Brief, at 19 n.77.

      Accordingly, having found the arguments raised in Mary’s appeal at 447

EDA 2015 to be waived and/or meritless, and accepting Christina’s position that

the issues raised in her appeal at 364 EDA 2017 have therefore been rendered

moot by our disposition that denies Mary’s appeal, we dismiss Christina’s appeal

at 364 EDA 2017.

      Adjudication of December 21, 2016 affirmed at 447 EDA 2017. Appeal

dismissed at 364 EDA 2017.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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