J-A12013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF THOMAS W. SIBENIK,              IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA




APPEAL   OF:   GISELLE  LEONARDO,
INDIVIDUALLY AND THE LAW OFFICE OF
GISELLE LEONARDO, P.A.

                                                     No. 748 WDA 2016


                   Appeal from the Order Dated April 29, 2016
               In the Court of Common Pleas of Allegheny County
                      Orphans' Court at No(s): 02-13-1787

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 27, 2017

        Appellants Giselle Leonardo, Esquire, individually, and The Law Office

of Giselle Leonardo, P.A. (together, “Leonardo”) appeal from the April 29,

2016 order of the Orphans’ Court Division of the Allegheny County Court of

Common Pleas that dismissed with prejudice Leonardo’s claim against an

estate for legal fees and expenses. We affirm.

        Thomas W. Sibenik died testate on December 18, 2012, and his son,

Thomas L. Sibenik, was appointed Executor of his estate on September 11,

2013.     Leonardo operates a law office in Fort Lauderdale, Florida. 1    On

____________________________________________
1 Leonardo’s brief states that Giselle Leonardo is licensed to practice law in
Pennsylvania and has an office in Pittsburgh. Appellants’ Brief at 7. At oral
argument, Appellants’ counsel informed us that Leonardo does not have an
office in Pittsburgh. Documents filed by Leonardo in this case list as her
address a Pittsburgh post office box.
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January 25, 2013, Sibenik entered into a Retainer Agreement with Leonardo.

The Agreement was in the form of a letter from Leonardo to Sibenik that had

as its “Re:” line, “Real Estate, Contracts, Estate Matters.”      Among other

things, the letter included a rate schedule “for the Administration of your

Father’s Estate” and stated that any disputes regarding fees could be

litigated in Broward County, Florida. The letter was signed by “Thomas Louis

Sibenik” with a date of “2-18-13.” At the time he signed the letter, Sibenik

had not yet been appointed Executor.

      Sibenik terminated his contract with Leonardo on June 4, 2013.       On

June 18, 2013, Leonardo sent Sibenik an invoice for $29,256.94 for the work

performed during her six-month representation.         For the most part, the

invoice contained entries relating to estate administration, but there also

were a few entries referencing such things as real estate and insurance

matters.   Most of the entries were for telephone calls that had no other

identification.   Sibenik   determined    that   the   invoiced   amount   was

unreasonable, and he refused to pay it.     On October 29, 2013, Leonardo

filed a claim against the estate in the amount of $29,256.94.

      On March 14, 2014, Sibenik, as Executor, filed a first and final account

of the Estate; the account listed disbursements for charges and claims, but

did not provide for any payment to Leonardo. On April 21, 2014, Leonardo




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filed verified objections to the account.2 She alleged that she “was engaged

by the named Executor pursuant to a fee letter signed on 2/18/13” and that

she “performed extensive legal services in connection with the estate

administration and further incurred expenses, for [a] total claim for legal

services and costs in the amount of $29,256.94.”            Objs. to First & Final

Account, 4/21/14, at 1-2 ¶¶ 5-6.           She alleged that the legal services she

provided qualified as an expense of administration that should have been

paid before other creditors under Section 3392 of the Probate, Estates and

Fiduciaries (“PEF”) Code. Id. at 3 ¶ 12(c)-(d).3


____________________________________________
2 Leonardo’s objections were filed by her counsel, but she verified them
pursuant to Section 4904 of the Crimes Code, 18 Pa. C.S. § 4904, relating to
unsworn falsification to authorities.
3   Section 3392 provides:
        If the applicable assets of the estate are insufficient to pay all
        proper charges and claims in full, the personal representative,
        subject to any preference given by law to claims due the United
        States, shall pay them in the following order, without priority as
        between claims of the same class:
        (1) The costs of administration.
        (2) The family exemption.
        (3) The costs of the decedent’s funeral and burial, and the costs
        of medicines furnished to him within six months of his death, of
        medical or nursing services performed for him within that time,
        of hospital services including maintenance provided him within
        that time, of services provided under the medical assistance
        program provided within that time and of services performed for
        him by any of his employees within that time.
        (4) The cost of a gravemarker.
        (5) Rents for the occupancy of the decedent’s residence for six
        months immediately prior to his death.
(Footnote Continued Next Page)
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      At the suggestion of Leonardo’s counsel, the parties mediated their

dispute and agreed to a resolution. See N.T., 3/29/16, at 3 (representation

by Leonardo’s counsel regarding mediation). On October 6, 2014, Leonardo

filed a motion to withdraw her claim. The motion stated, “The parties have

entered into an agreement to settle the Claim for the amount of $16,000.”

Motion To Withdraw Claim, 10/6/14, at 2 ¶ 4. It continued, “As this matter

is now settled, the Claimant seeks to withdraw the Claim.” Id. at ¶ 5. The

motion noted that both sides consented to the withdrawal. Id. at ¶ 6. On

October 8, 2014, the Orphans’ Court entered an order that stated: “upon

consideration of Objector/Claimant’s Motion to Withdraw Claim, IT IS

ORDERED that the Claim filed by G. Leonardo, Esq. is hereby withdrawn with

prejudice.”   Order, 10/8/14.       On October 10, 2014, $16,000 was wired to

Leonardo’s bank account.         On December 13, 2014, Sibenik, as Executor,

filed a status report with the court stating that administration of the Estate

was complete.

      On December 22, 2015, Leonardo filed a complaint against Sibenik in

the Circuit Court of Broward County, Florida (“Broward County Complaint”). 4

In it, Leonardo alleged that Sibenik had entered into an agreement for legal
(Footnote Continued) _______________________
      (5.1)     Claims by the Commonwealth            and   the   political
      subdivisions of the Commonwealth.
      (6) All other claims.
20 Pa. C.S. § 3392.
4 Law Office of Giselle Leonardo, P.A. v. Sibenik, in the Circuit Court of
the Seventeenth Judicial Circuit in and for Broward County, Florida, Docket
No. CACE-15-022792.

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services and she had sent him invoices for the work performed.               The

complaint attached a copy of the June 18, 2013 invoice for $29,256.94 and

alleged, “No objections were made to these monthly invoices.”          Broward

County Complaint, 12/22/15, at 2 ¶¶ 7-8 & Ex. B.           The complaint also

attached a second invoice, dated August 18, 2013, that also was for

$29,256.94 and repeated, “No objection was made by Defendant to the

invoices.” Id. at 2-3 ¶ 9 & Ex. C. The complaint then alleged:

             On or about October 15, 2014, payment in the amount of
       $16,000 was made to [Leonardo] from collateral sources. It was
       applied to attorney’s fees, costs and interest and to the principal
       balance owed under the invoices. This left an amount remaining
       due and owing from the June 2013 invoice in the amount of
       $20,397.22.

Id. at 3 ¶ 10. The complaint pled four counts against Sibenik, for breach of

contract, quantum meruit, an open account, and an account stated; each

sought “$20,397.22 plus costs, interest and attorney’s fees.”        Id. at 3-6

¶¶ 12-34.5

       On February 23, 2016, Sibenik petitioned for a “Rule To Show Cause

Why a Settlement and Compromise Should Not Be Enforced.” The petition

alleged:

       14. The monetary claim asserted by Ms. Leonardo in Florida is
       for the same fees and expenses asserted in her Claim and
       Objection in this estate.
____________________________________________
5 The complaint does not explain how Leonardo calculated an amount due of
$20,397.22, when the claim supposedly was for the balance remaining on a
claim of $29,256.94 minus a $16,000 payment. A fifth count of the
complaint sought to reform a provision of the Retainer Agreement that called
for attorneys’ fees to “be paid by the prevailing party,” rather than by the
non-prevailing party.

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      15. Ms. Leonardo acknowledges in her Complaint the receipt of
      the $16,000.00 payment which settled her Claim but instead of
      representing it for what it was, i.e. a payment in satisfaction of
      her claim for legal fees and expenses, she states it was merely a
      payment “from collateral sources.” . . .

      16. Ms. Leonardo settled and compromised her claim and is
      barred from pursuing any further legal action.

Pet. for Rule to Show Cause Why a Settlement & Compromise Should Not Be

Enforced, 2/23/16, at ¶¶ 14-16. On February 24, 2016, the Orphans’ Court

issued a rule that was returnable on March 29, 2016.

      On March 24, 2016, Leonardo filed a “Preliminary Objection/Reply to

Petition for Rule To Show Cause.” She claimed that Sibenik’s petition was

“essentially a Preliminary Objection or a New Matter defense” to the Broward

County Complaint that should be filed in that Florida action. With respect to

enforcement of the settlement, Leonardo averred: “The petition for Rule to

Show Cause seeks enforcement of a settlement; however, all terms and

conditions of the Allegheny County settlement have in fact been concluded.

The payment was made in full and the claim against the Estate was

withdrawn.    There is nothing to enforce in Allegheny County.”       Prelim.

Obj./Reply to Pet. for Rule to Show Cause Why the Settlement Should Not

Be Enforced, 3/24/16, at 1 ¶ 2.        Leonardo asserted that because no

settlement agreement was incorporated into the final judgment in the Estate

matter, the Orphans’ Court lacked subject matter jurisdiction to proceed

further.   Id. at 2 ¶ 3.    She noted that she filed the Broward County



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Complaint against Sibenik personally, not the Estate, id. at ¶¶ 4, 6, and

added:

      The Broward County Complaint is for legal services rendered to
      Mr. Sibenik, the individual, and not as Executor of his father’s
      estate. The Fee Agreement was signed by Giselle Leonardo, P.A.
      and Thomas Sibenik, in his individual capacity and not as
      Executor, and includes a provision for venue in Broward County,
      FL. The Complaint is for services from January to June 2013,
      prior to the appointment of an Executor.

Id. at ¶ 5. Leonardo stated that her “Objections to the Estate Account . . .

were specifically in reference to ‘extensive legal services in connection with

estate administration’ only” and that “[t]here was no global settlement of all

claims.” Id. at 3 ¶ 8.

      In response to these filings, on April 29, 2016, the Orphans’ Court

entered an order clarifying its October 8, 2014 order approving the

withdrawal of Leonardo’s claim against the estate. The order stated:

      [I]t is hereby ORDERED and DECREED that the court’s Order of
      October 8, 2014 be and is hereby clarified as follows:

             The court’s Order dismissed with prejudice the claim of
      Attorney Leonardo against the estate and Thomas L. Sibenik,
      individually, and in his capacity as Executor of the Estate, for
      legal fees and expenses in the amount of $29,256.94 claimed by
      Attorney Leonardo on the basis of a fee letter signed by
      Thomas L. Sibenik on February 18, 2013 and the invoice of
      Attorney Leonardo in the amount of $29,256.94.

The order included findings that summarized what had occurred in the case

up to the settlement.    It also referenced Section 3331 of the PEF Code,




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which states that an executor does not have personal liability on any

contract made as an executor or other personal representative of an estate.6

        On May 23, 2016, Leonardo filed a timely appeal that raises the

following issues:

        [1.] Does a court have jurisdiction to make substantive
        changes to a final order more than thirty days after the order
        was signed, when neither exceptions nor an appeal were filed?

        [2.] May a court substantially modify a final order which results
        from a compromise between the parties absent any allegations
        of ambiguity, fraud or mistake in the order and without any due
        process procedure?

        [3.] May a court substantially modify a final order for the
        benefit of a non-party more than eighteen months after the
        order was signed and without any due process procedure?

        [4.] May a court enter a final order granting the substantive
        relief requested by a party before the court has disposed of
        pending preliminary objections?

Leonardo’s Brief at 6 (issues reordered).7

____________________________________________
6   Section 3331 of the Code, 20 Pa. C.S. § 3331, provides:

        Unless he expressly contracts otherwise, in writing, a personal
        representative shall not be personally liable on any written
        contract which is within his authority as personal representative
        and discloses that he is contracting as personal representative of
        a named estate. Any action on such a contract shall be brought
        against the personal representative in his fiduciary capacity only,
        or against his successor in such capacity, and execution upon
        any judgment obtained therein shall be had only against
        property of the estate.

Nothing in the Retainer Agreement made Sibenik personally liable for
payment of any claim against the Estate.
7 The Sibenik Estate has filed a responsive brief as appellee, but it fails to
comply with the Rules of Appellate Procedure, which require all documents,
(Footnote Continued Next Page)
                                           -8-
J-A12013-17


       Leonardo contends that the Orphans’ Court lacked authority to “make

substantive changes” or to “substantially modify” its October 8, 2014 order.

“To the degree the issue of whether the law has been misapplied involves a

purely legal question, it is reviewed de novo.”    In re Fiedler, 132 A.3d

1010, 1025 (Pa. Super.) (en banc), appeal denied, 145 A.3d 166 (Pa.

2016).    Upon careful review, we conclude that the Orphans’ Court did not

err.

       The controlling fact in this case is that Leonardo appeared before the

Allegheny County Orphans’ Court and represented to that court that the

Sibenik Estate owed her $29,256.94 for legal services relating to estate

administration. There was no ambiguity in her representation. She filed a

claim for $29,256.94, and in objections to the Estate’s final account she

alleged that she “was engaged by the named Executor pursuant to a fee

letter,” she “performed extensive legal services in connection with the estate

administration,” her work qualified as an administrative expense of the

Estate, and the cost of her legal services for the Estate was $29,256.94.

Objs. to First & Final Account, 4/21/14, at 1-3 ¶¶ 5-6, 12(c)-(d). The Estate

dealt with her claim on that basis, negotiated it, and settled it for $16,000


(Footnote Continued) _______________________
including briefs, to be double-spaced and to use type no smaller than 12-
point. Pa.R.A.P. 124(a)(3), (4). Compliance with these requirements is
mandatory; Rule 124(a)(3) uses the word “must,” and Rule 124(a)(4) uses
“shall.”  The Estate’s brief complies with neither requirement.     In an
appropriate case, a nonconforming brief may be suppressed. Pa.R.A.P.
2101. We admonish counsel for the Estate for failing to comply with our
rules.

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J-A12013-17


under the auspices of the Orphans’ Court, which approved Leonardo’s

withdrawal of her claim upon receiving her representation of the settlement.

       Now, Leonardo seeks to backtrack. She says the $29,256.94 does not

relate entirely to work for the Estate, and in fact she claims that most of that

amount ($20,397.22, according to her pleading in Florida) was incurred

performing personal legal services for Sibenik.                That claim is directly

contrary to what she represented to the Orphans’ Court. The claim also is

belied by a cursory review of her invoice, the specific entries on which relate

to estate matters.8

       Leonardo also says that Sibenik, not the Estate, is personally liable for

her fees because she entered into the Retainer Agreement with him before

he was appointed Executor of his Father’s Estate.              Again, that is directly

contrary to what she represented to the Orphans’ Court, when she stated

that she “was engaged by the named Executor pursuant to a fee letter” and

“performed      extensive    legal    services     in   connection   with   the   estate

administration.”      It is true that Sibenik had not yet been appointed as

Executor when he signed the Agreement on February 18, 2013 (or, indeed,

by the time he fired Leonardo in June 2013).               However, according to the

____________________________________________
8There are a few references in the invoice to real estate and other matters,
but it is unclear whether these relate to personal matters of Sibenik or
whether they deal with, for example, real estate that was part of the Estate.
When the Orphans’ Court looked at the invoice, it said: “I don’t see
anything really other than the estate. I don’t.” N.T., 3/29/16, at 13. We
again note that, when Leonardo filed her claim against the Estate and her
objections to the Estate account, she represented that the full $29,256.94
was incurred for estate administration work.

                                          - 10 -
J-A12013-17


entries on Leonardo’s invoice, she worked on estate administration during

that time in consultation with Sibenik, and her filings with the Orphans’

Court show that she elected to treat that work as work for the Estate without

awaiting Sibenik’s formal appointment as Executor.           Her filings induced

Sibenik, as Executor, to settle her claim on behalf of the Estate. Leonardo is

now estopped from claiming that she really was working for Sibenik in some

other capacity, especially since her dealings with Sibenik as the Estate’s

Executor meant that, under Section 3331 of the PEF Code, he could not be

held individually liable for the claim filed against the Estate.9

       In her brief, Leonardo seeks to brush aside the implications of her

filings against the Estate as an “academic question” and to blame Sibenik

because he “could have (maybe should have?) objected strenuously to” her

claim against the Estate.          Appellant’s Brief at 27-28 n.5.   During oral

argument before this Court on May 9, 2017, her counsel justified her actions

by stating, “My client is entitled to overreach.”

       We disagree.       Lawyers are officers of the Court.    We accept their

factual representations because they occupy that position of trust.         See
____________________________________________
9 See In re Estate of Bullotta, 838 A.2d 594, 596 (Pa. 2003) (“As a
general rule, a party is estopped from assuming a position inconsistent with
his or her assertion in a previous action, if the party is successful in
maintaining that action”; “[t]he purpose of the doctrine is to protect the
integrity of the courts by preventing litigants from ‘playing fast and loose’
with the judicial system by switching positions as required by the moment”
(citations and internal quotation marks omitted)); In re S.A.J., 838 A.2d
616, 621 (Pa. 2003) (“the purpose of judicial estoppel is to uphold the
integrity of the courts by preventing parties from abusing the judicial
process by changing positions as the moment requires” (citations and
internal quotation marks omitted)).

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Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002, 1004 n.5 (Pa. 2010). We

hold lawyers to a duty of candor. See Pa. R. Prof. Resp. 3.3, 204 Pa. Code

§ 81.4 R. 3.3; Pa. Code of Civility, Art. II ¶ 8, 204 Pa. Code § 99.3(8).

Leonardo’s representations to the Orphans’ Court were made by her counsel

on behalf of Leonardo personally, and not by Leonardo in her role as an

advocate for an outside client; but we do not believe that this status excused

Leonardo from a duty of candor to the Orphans’ Court. Her representations,

which were verified pursuant to the Crimes Code provision relating to

unsworn falsification to authorities, concerned her fees and services as an

attorney acting on behalf of a client, and they supported a claim for payment

from an estate that was subject to approval by the Orphans’ Court (see 20

Pa. C.S. § 3514).    Though Leonardo, like every other litigant, had every

right to take good faith positions in litigation, she could not “overreach” by

reneging on her representations to that court.

        The Orphans’ Court’s April 29, 2016, order must be viewed in this

context.    After filing a claim against the Estate for $29,256.94 and then

settling it for $16,000, Leonardo sought in Florida to portray the settlement

payment as merely funds from a “collateral source” and to characterize her

Retainer Agreement as a contract by Sibenik for personal legal services

under which he ran up fees of $29,256.94 and then never objected to her

bill.   The Orphans’ Court acted within its authority by assuring that its

October 8, 2014 order approving withdrawal of Leonardo’s claim against the

Estate in light of the settlement could not be mischaracterized in that way.

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Accordingly, it entered the April 29, 2016, order to clarify what had

happened.

       The Orphans’ Court did not act outside its jurisdiction. In arguing to

the contrary, Leonardo relies on a Judicial Code provision, 42 Pa.C.S.

§ 5505, which states: “Except as otherwise provided or prescribed by law, a

court upon notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any term of

court, if no appeal from such order has been taken or allowed.” Leonardo

insists that the Orphans’ Court had no jurisdiction to enter the April 29, 2016

order because it did so more than thirty days after entry of the October 8,

2014, order. However, the April 29, 2016 order did not “modify or rescind”

anything in the October 8, 2014 order; instead, the 2016 order merely

clarified the 2014 order.       A court retains such clarification authority under

Section 5505.       See Retanauer v. Flaherty, 642 A.2d 587, 590 (Pa.

Cmwlth. 1994), appeal denied, 668 A.2d 1135 (Pa. 1995).10

       Moreover, an Orphans’ Court retains broad equitable powers regarding

an estate, even after final distributions have been made.         See Horner v.

First Pa. Banking & Trust Co., 194 A.2d 335, 339 (Pa. 1963) (“powers of

the Orphans’ Court did not terminate upon final distribution”). We have long

recognized that Orphans’ Courts have the inherent power to review their

____________________________________________
10“Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 283 n.12 (Pa.
Super. 2016) (citation omitted).

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decrees and that this power should be “liberally exercised.”         Estate of

Turnbull, 88 Pa. Super. 482, 494 (1926).           Section 3521 of the PEF Code

codifies a specific power of review that may be exercised up to five years

after final confirmation of an account if a new matter has arisen.11

Leonardo’s recharacterization of her $29,256.94 fee claim in the Broward

County Complaint was a new matter that arose after confirmation of the

Estate account.      Although Sibenik did not file a formal petition for review

under Section 3521, we conclude that the Orphans’ Court had inherent

power and discretion to clarify the orders it had entered in this case in light

of that new matter.

        As there was only a clarification of the October 8, 2014 order,

Leonardo also is not entitled to relief on her second and third issues, each of
____________________________________________
11   Section 3521 reads:

        If any party in interest shall, within five years after the final
        confirmation of any account of a personal representative, file a
        petition to review any part of the account or of an auditor’s
        report, or of the adjudication, or of any decree of distribution,
        setting forth specifically alleged errors therein, the court shall
        give such relief as equity and justice shall require: Provided,
        That no such review shall impose liability on the personal
        representative as to any property which was distributed by him
        in accordance with a decree of court before the filing of the
        petition. The court or master considering the petition may
        include in his adjudication or report, findings of fact and of law
        as to the entire controversy, in pursuance of which a final order
        may be made.

20 Pa. C.S. § 3521. We have held that this provision authorizes action by
the Orphans’ Court if, for example, “new matter has arisen since the
confirmation of the account or decree” or “justice and equity require a
review and no person will suffer thereby.” In re Jones, 660 A.2d 76, 80
(Pa. Super. 1995), appeal denied, 673 A.2d 335 (Pa. 1996).

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which presumes that the October 8 order was substantively modified. The

October 8 order said that Leonardo’s $29,256.94 claim was “withdrawn with

prejudice.”   The April 29, 2016 order said that it was “dismissed with

prejudice.”   The court said that it planned to sign the latter order as

“confirming that . . . this order is the final order . . . for purposes of

resolution of this matter.”    N.T., 3/29/16, at 8.      It included findings

summarizing the record so that, “if a Court wants to look behind what

happened here, that is information provided to the Court.” N.T., 4/29/16, at

8. In a later opinion, the Orphans’ Court explained:

      Acting upon the motion to enforce settlement[,] the court order
      of [] April 29, 2016 was to clarify what the parties’ intentions
      were when they satisfied and withdrew the claim in its entirety.
      Absent reservations of record, the [trial] court treated the
      settlement of the claim as a total satisfaction and not pro tanto.

Orphans’ Ct. Op. at 2. Thus, the April 29, 2016 order merely clarified the

nature and scope of Leonardo’s claim in the Orphans’ Court.

      Leonardo’s final issue is a procedural one.      She contends that the

Orphans’ Court’s “entry of the April 29, 2016 order without ruling on the

pending preliminary objections was an abuse of discretion and error of law.”

Leonardo’s Brief at 22. We disagree.

      Leonardo responded to the Estate’s petition with a hybrid document it

called “Preliminary Objection/Reply to Petition for Rule To Show Cause.” The

Orphans’ Court considered the substance of that pleading and then granted

the Estate’s requested relief.    As the Orphans’ Court Rules make no

provision for how to address a “Preliminary Objection/Reply,” we see no

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error in the Orphans’ Court’s disposition. In effect, Leonardo elected to file a

preliminary objection and a reply to the Estate’s petition simultaneously, and

the Orphans’ Court therefore disposed of both simultaneously as well.        As

the court later pointed out, “While an independent order was not entered[,]

it should be apparent that the preliminary objections were overruled by the

substance of the April 29, 2016 Order.” Orphans’ Ct. Op. at 2. As we have

discussed, we find no error in the Orphans’ Court’s resolution of the

substantive issues raised by Leonardo in her pleading.             Accordingly,

Leonardo’s final issue is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




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