J-A20025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF WALTER J.                     IN THE SUPERIOR COURT OF
KONJOLKA                                             PENNSYLVANIA

                        Appellee

                   v.

APPEAL OF: TARA JOLLEY KONJOLKA
BROWN

                        Appellant                   No. 1664 WDA 2015


               Appeal from the Order entered October 1, 2015
             In the Court of Common Pleas of Allegheny County
                     Orphans' Court at No: 0936 of 2014


BEFORE: BOWES, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 22, 2017

      Appellant Tara Jolley Konjolka Brown (“Brown”) appeals from the

October 1, 2015 order entered in the Court of Common Pleas of Allegheny

County (“trial court”) denying the petition to admit the codicil dated July 1,

2012, (“Codicil”) into probate. Appellee is the Estate of Walter J. Konjolka.

Upon review, we affirm.

      Walter J. Konjolka, (“the Decedent”) died testate on February 3, 2014.

On February 13, 2014, testamentary letters were granted to Ena W.

Konjolka (“Konjolka”) for the Decedent’s will dated October 15, 2003 (“the

Will”). On October 14, 2014, Brown filed a petition for citation seeking to

have a codicil dated July 1, 2012, into probate.    Konjolka filed an answer

and new matter on December 4, 2014, asserting the Codicil was a forgery.
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Brown filed a reply to the new matter on January 23, 2015. Konjolka and

Brown filed pre-trial statements on April 20, 2015.      The trial court held a

hearing on May 4-5, 2015.      Following a hearing, the trial court made the

following fact and credibility findings in its June 30, 2015 opinion.

             Both parties presented the testimony of expert witnesses
      with regard to whether the Decedent’s signature on the Codicil
      was a forgery. [Brown’s] expert, George Papadopoulos, opined
      that the signature was authentic, while the Executrix’s expert,
      Khody Detwiller determined that the signature was a “crude
      imitation” and not a genuine signature. Their reports were
      introduced as Exhibits A and 6, respectively, along with Exhibit
      7, which was Mr. Detwiller’s enlarged comparison charts. The
      [trial court found] Mr. Detwiller’s testimony to be more
      convincing for the following reasons.       First, Mr. Detwiller’s
      credentials, education, and training are superior to that of Mr.
      Papadopoulos. Second, Mr. Detwiller’s techniques, including the
      scanning of the signatures at high resolution of 800DPI and 1200
      DPI, are superior to Mr. Papadopoulos’s use of a hand-held
      magnifying glass of unknown strength. Third, Mr. Detwiller’s
      analysis of each portion of the known signatures vs. the
      questioned signature was infinitely more detailed than the
      analysis put forth by Mr. Papadopoulos. Accordingly, the [trial
      court] relied more heavily on the opinion of Mr. Detwiller.

            In addition to the testimony of the experts, [Brown]
      presented the testimony of Isaac Melvin, who was the Notary
      Public. Mr. Melvin testified the Decedent called him and asked
      him to notarize the document. He met the Decedent, along with
      the three witnesses, at the Steak ‘n Shake on Route 51 on July
      1, 2012. He requested identification from each of them and he
      witnessed the Decedent signing the document, which he
      notarized for a fee of $100. Conveniently, Mr. Melvin’s notary
      log was “destroyed in a fire” and he did not produce any
      evidence of payment. The Court finds the loss of the notary log
      book to be dubious and the $100 payment for a single notary act
      to be extraordinary; thus, Mr. Melvin’s testimony was
      questionable.

           [Brown] also presented her own testimony, the testimony
      of her [h]usband, and the testimony of Joseph DeSalvo. All

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      three of these witnesses testified that they were present when
      the Decedent signed the Codicil and they were witnesses to his
      signature.     [Brown’s] testimony was self-serving and her
      credibility was questionable based upon her criminal history and
      check forgery introduced as Exhibit 1. Also, the fact that she
      threatened the Executrix with “war” in an email and then
      appeared with the purported Codicil almost three months later,
      which was over eight months after the Decedent’s death is
      suspicious. The testimony of [Brown’s] [h]usband was also self-
      serving in that he would benefit, even if indirectly, if [Brown]
      received an inheritance from her father. With regard to Joseph
      DeSalvo, there was testimony that he was incarcerated on the
      date that the Codicil was allegedly signed. He claimed to have
      been on “work release” from the Fayette County Jail; however,
      [Brown] failed to produce any evidence, even after the hearing,
      to prove that claim. As such, the [trial court was] skeptical that
      it was true, especially in light of the fact that Mr. DeSalvo
      claimed that he was the only person to ever be granted work
      release from the Fayette county Jail and he was permitted to
      basically come-and-go as he pleased.

Trial Court Opinion, 6/30/15, at 1-3 (sic).

      On July 17, 2015, Brown filed exceptions/objections to the trial court’s

decision. On July 21, 2015, the trial court established a briefing schedule on

Brown’s exceptions.    By order entered October 1, 2015, the trial court

denied the exceptions to the trial court’s June 30, 2015 opinion. Brown filed

a timely notice of appeal on October 22, 2015.       The trial court did not

request a concise statement of matters complained of on appeal, instead,

the trial court issued a Pa.R.A.P. 1925(a) opinion incorporating its June 30,

2015 opinion.

      This Court issued an order on January 24, 2017, striking the brief of

the Estate of Walter J. Konjolka and Brown’s reproduced record as the

documents contained confidential personal identification information of a


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non-party.     The parties were directed to file identical documents with all

confidential information redacted. Appellee filed a redacted brief on January

30, 2017,1 and Appellant filed a redacted reproduced record on March 10,

2017.

        On appeal, Brown raises four issues which we quote verbatim.

        1. The [trial] court erred by patently ignoring the clear and
           convincing evidence burden of Appellee in making its
           decision. The [trial] court’s own findings of fact can only
           support a decision that the codicil in question was genuine.

        2. The [trial] court erred as a matter of law by admitting into
           evidence a detailed expert report that had never been
           provided to [Brown’s] counsel, additionally th[e trial] court
           further erred by permitting the Appellee’s expert to testify
           extensively with regard to said report.

        3. The [trial] court erred by patently ignoring established case
           law holding that expert testimony in a forgery case holds very
           little weight and cannot prevail against credible testimony of
           fact witnesses.

        4. The [trial] court erred by permitting a witness to testify that
           was never listed on Appellee’s pre-trial statement and
           unknown to [Brown’s] counsel. The [trial] court further erred
           by admitting into evidence documents that were brought by
           this witness that had never been seen by [Brown’s] counsel.

Appellant’s Brief at 4.

        Brown’s first claim is a challenge to the trial court’s findings of fact.

Our standard of review of such claim is well established.
____________________________________________


1
  While Appellee redacted the information, upon scanning the document into
this Court’s computer system, the redacted information remains visible.
Thus, we will order that the scanned document be sealed from public
viewing.



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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
      discretion.

In re Estate of Cruciani, 986 A.2d 853, 855 (Pa. Super. 2009) (quoting In

re: Estate of Presutti, 783 A.2d 803, 805 (Pa. Super. 2001) (citation

omitted)).    Moreover, in cases involving alleged forgery, the moving party

“has the burden of proving the existence of the forged document by clear,

direct,   precise,    and   convincing   evidence.”     Id.   (citations   omitted).

Additionally, “forgery presents an issue of fact, the resolution of the issue

necessarily turns on the court’s assessment of the witnesses’ credibility.”

Id. (citations omitted).

      In the matter sub judice, the trial court found the testimony of Brown’s

witnesses, Melvin, DeSalvo, Joseph Brown, and Brown herself, incredible.

Upon review, we find that the trial court adequately explained the reasons

for finding this testimony incredible; thus, the trial court did not abuse its

discretion.   See Trial Court Opinion, 6/30/15, at 1-3.        Moreover, the trial

court found that the expert testimony provided by Mr. Detwiler was more

credible than the testimony of Mr. Papadopoulos, due to his superior

credentials, education, training, technique, and his analysis was significantly

more detailed.       See id. at 1-2.     The record supports this finding.     Upon

review, the trial court found there was clear and convincing evidence that




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the codicil in question was a forgery and did not abuse its discretion; thus,

Brown’s first claim fails.

      Relatedly, Brown argues that the trial court improperly weighed the

testimony of Mr. Detwiler because “[t]he Supreme Court has held that the

opinion evidence of an expert is, in cases of forgery, entitled to very little

weight and cannot prevail against positive evidence of actual facts by

witnesses.”   Appellant’s Brief at 15 (citing In re Elias’ Estate, 239 A.2d

393, 396 (Pa. 1968) (additional citations omitted)). While Brown quotes the

holding of Elias, she omits a key phrase resulting in a misstatement of the

holding in that case. The complete holding reads as follows: “the opinion

evidence of an expert, is in cases of forgery, entitled to very little weight and

cannot prevail against positive evidence of actual facts by witnesses whom

the Chancellor considers credible.”           Elias, 239 A.2d at 396.         As

discussed above, the trial court found the testimony of Brown’s fact

witnesses incredible. Thus, Brown’s third claim fails.

      Next, Brown argues that the trial court erred by permitting Mr.

Detwiller to testify, and admitting his expert report into the record.

Appellant fails to develop the argument with citation to and analysis of

relevant authority; thus, Brown’s claim is waived. See Harris v. Toys “R”

Us-Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (citing Pa.R.A.P.

2119(b); Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super. 2003)).

Even if Brown’s claim was not waived, it is meritless.             Brown cites

Pa.R.Civ.P. 4003.5, which deals with the discovery of expert testimony and

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an expert report, not the admission of expert testimony.       Brown’s second

claim fails.

        Finally, Brown argues that the trial court erred by permitting Michelle

Horan, the Fayette County Prison records supervisor, to testify because she

was not listed as a witness on the pretrial statement. Brown fails to cite to

any legal authority for this proposition other than a blanket assertion that it

was a violation of Pa.R.Civ.P. 4003.5.      Thus Brown’s claim is waived for

failing to develop an argument. See Harris, 880 A.2d at 1279; Pa.R.A.P.

2119(b). Even if Brown’s claim was not waived, it is meritless, since Rule

4003.5 applies to the discovery of expert testimony, not the admissibility of

impeachment testimony.

        Order affirmed.   Appellee’s Brief is ordered to be sealed from public

view.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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