J. A32043/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ESTATE OF: GAETANO CIUCCARELLI,             :     IN THE SUPERIOR COURT OF
DECEASED                                    :          PENNSYLVANIA
                                            :
                                            :
                                            :
APPEAL OF: FRANK CARUSO,                    :     No. 1251 EDA 2014
                                            :

                   Appeal from the Order Entered April 2, 2014
              In the Court of Common Pleas of Philadelphia County
          Orphans’ Court No(s).: 1936 DE of 2006 Control Nos. 145073

BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 12, 2014

        This case returns to us after a prior panel remanded. Appellant, Frank

Caruso, acting as Administrator of the Estate of Eileen Caruso, and

individually, appeals from the order of the Philadelphia County Court of

Common Pleas, Orphans’ Court Division, dismissing his escrow forgery

complaint on preliminary objections.       Appellant avers the court erred in

sustaining Appellee’s, T.D. Bank’s, preliminary objections to the complaint

based upon Eileen Caruso’s, decedent’s adopted daughter’s, lack of standing

in the underlying estate case. We affirm.

        We adopt the facts and procedural posture of this case as stated by a

prior panel of this Court.




*
    Former Justice specially assigned to the Superior Court.
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          The factual and procedural history of this case is
       lengthy.    On November 10, 2004, Decedent [Gaetano
       Ciuccarelli] executed a reciprocal will with his wife (“2004
       Will”). Following her death, Decedent was unable to locate
       the 2004 Will, and executed a second will on May 2, 2006
       (“2006 Will”). Both the 2004 Will and the 2006 Will named
       Decedent’s sister, Angelia Scheswohl, and her husband,
       Edward Scheswohl (“the Scheswohls”), as Decedent’s sole
       beneficiaries. Trial Court Opinion (“T.C.O.”), 1/16/2012, at
       2–3.

           On November 2, 2006, Decedent died. He was survived
       by the Scheswohls and by his adopted daughter, Eileen
       Caruso.    On November 21, 2006, the 2006 Will was
       admitted to probate as the last will and testament of
       Decedent. The Scheswohls were named as executors, but
       renounced that right in favor of their attorney, Christine
       Embry Waltz (“Attorney Waltz”). Letters of administration
       cum testamento annexo were issued to her. On December
       19, 2006, in an action filed in the Orphans’ Court Division,
       Eileen   Caruso     challenged    Decedent’s   2006     Will
       (hereinafter, “Will Contest”).      Eileen Caruso alleged
       testamentary incapacity and undue influence. She was
       represented by Raymond J. Quaglia (“Attorney Quaglia”).
       Attorney Waltz, in her capacity as administratix of
       Decedent’s estate, was represented by C. George Milner
       (“Attorney Milner”).

           Following discovery, Attorney Waltz filed a motion
       to dismiss Eileen Caruso’s complaint, alleging that
       [she] lacked standing. On January 10, 2008, the
       trial court (per the Honorable Anne Lazarus, then sitting
       as a Common Pleas Judge) dismissed the Will Contest
       on the basis that Eileen Caruso lacked standing.
       Eileen Caruso appealed to this Court. In a memorandum
       filed on July 24, 2009, we remanded for further
       proceedings before the trial court to determine: (1)
       whether the 2004 Will could be probated without an
       original; (2) whether the 2004 Will was invalid due to
       testamentary incapacity or undue influence; and (3)
       whether Decedent’s 2006 Will similarly was invalid. In re
       Estate of Ciuccarelli, [1140 EDA 2008 (unpublished
       memorandum) (Pa. Super. July 24, 2009).] On March 15



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           and 16, 2010, trial on these issues proceeded before the
           Honorable Matthew Carrafiello.

               On July 8, 2010, while the Will Contest remained
           pending in the Orphans’ Court Division of the Court of
           Common Pleas of Philadelphia County, Eileen Caruso and
           [her husband,] Appellant[1] (collectively, “the Carusos”),
           filed a complaint in this separate action in the Trial Division
           of that court. The Carusos asserted claims against TD
           Bank, Attorney Milner, and Attorney Waltz. These new
           allegations related to the escrow of proceeds from
           the sale of Decedent’s home (hereinafter, the “Escrow
           Case”). Specifically, the Carusos asserted that the parties
           to the Will Contest consented to sell the residence and
           place the monies resulting from the sale in escrow pending
           determination of the underlying Will Contest.              See
           Appellant’s Stipulation and Consent to Sale of Real Estate,
           7/30/2007, at 2 (“The net proceeds of the sale shall be
           escrowed pending determination of the petition of
           appeal filed by Eileen Caruso.”). The residence was
           sold sometime “in the first half of 2007.” Brief for Attorney
           Milner at 4. Initially, the money from the sale was held by
           First Patriot Abstract Company (“FPAC”) with TD Bank. At
           some time in April 2008, FPAC advised the parties that it
           would no longer hold the subject funds, and it delivered a
           check payable to the order of “George Milner / Raymond
           Quaglia for Gae Ciuccarelli” to Attorney Milner. Attorney
           Milner endorsed the check and deposited it in an interest-
           bearing account, apparently without consulting the
           Carusos or Attorney Quaglia.          Based upon Attorney
           Milner’s actions, the Carusos alleged that Attorney Milner
           forged Attorney Quaglia’s signature to deposit the check,
           and that Attorney Waltz and TD Bank also were liable.
           Specifically, the Carusos asserted claims for: (1) fraud,
           material misrepresentation, and forgery against Attorney
           Milner; (2) breach of contract against Attorney Milner and
           Attorney Waltz; (3) breach of fiduciary duty against
           Attorney Waltz; and (4) breach of warranty under the
           Uniform Commercial Code (“UCC”) against TD Bank. See
           Escrow Case Complaint, 7/8/2010, at 1–9.

1
    The appellant in that appeal is the appellant in the instant appeal.




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           On August 11, 2010, the trial court ruled against Eileen
       Caruso in the Will Contest, finding that (1) even if the
       2006 Will was invalidated, the 2004 Will properly could be
       probated; and (2) neither document was the product of
       testamentary incapacity or undue influence. Eileen Caruso
       filed exceptions, which were denied on December 20,
       2012. She appealed, for the second time in the Will
       Contest, to this Court. [See Estate of Ciuccarelli, 83
       EDA 2011 (unpublished memorandum) (Pa. Super. Aug.
       16, 2011), appeal denied, 229 EAL 2012.]

           Meanwhile, on August 5, 2010, TD Bank had filed
       preliminary objections in the Escrow Case, alleging
       that the Carusos lacked the capacity to sue and had
       failed to state a claim upon which relief could be
       granted.      See Preliminary Objections of TD Bank to
       Escrow Case Complaint, 8/5/2010, at 1–5. On September
       22, 2010, the Escrow Case was assigned to the Honorable
       Allan L. Tereshko of the Trial Division. On September 24,
       2010, Attorney Waltz filed her own preliminary objections,
       alleging that the Trial Division lacked subject matter
       jurisdiction under 20 Pa.C.S. § 711, and that the Carusos
       had failed to state a claim upon which relief could be
       granted for breach of contract or breach of fiduciary duty.
       See Attorney Waltz's Preliminary Objections to Escrow
       Case Complaint, 9/24/2010, at 2. On October 1, 2010,
       Judge Tereshko sustained TD Bank’s preliminary objections
       and dismissed the Carusos’ claims against TD Bank with
       prejudice.     On October 28, 2010, Judge Tereshko
       sustained     Attorney  Waltz’s    preliminary  objections,
       dismissed the Carusos’ claims against Attorney Waltz
       without prejudice, and ordered the transfer of the
       remainder of the case to the Orphans’ Court Division of the
       Court of Common Pleas of Philadelphia County.

          On March 3, 2011, following transfer, the Escrow Case
       was assigned to Judge Carrafiello. See Decree, 3/3/2011,
       at 1. On March 23, 2011, Judge Carrafiello filed a decree
       that “stayed further action before [the] Orphans’ Court”
       during the pendency of the underlying Will Contest appeal.
       See Decree, 3/23/2011, at 1. On August 16, 2011, we
       affirmed the Orphans’ Court Division’s decision in
       the Will Contest. Specifically, we ruled that Eileen


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         Caruso lacked standing to contest the 2006 Will. In
         re Estate of Ciuccarelli, [83 EDA 2011, appeal denied,
         229 EAL 2012 (Pa. 2012)]

             On September 26, 2012, Attorney Milner filed a petition
         to dismiss Appellant’s remaining claims in the Escrow
         Case, asserting two bases: (1) that the Carusos lacked
         standing where there had been a final determination that
         Eileen Caruso had no beneficial interest in any part of the
         Ciuccarelli estate; and (2) that the Carusos had suffered
         no recoverable damages.        On that same day, Judge
         Carrafiello terminated the stay of the proceedings and
         ordered all remaining parties to show cause as to why the
         Escrow Case should not be dismissed for lack of standing.
         On October 19, 2012, Judge Carrafiello dismissed
         Appellant's case with prejudice and ordered that
         “[Attorney] Milner shall distribute the proceeds from the
         sale of Gaetano Ciuccarelli’s home as required by
         provisions of Title 20, Pa[.] Statutes Consolidated.” See
         Decree, 10/19/2012 at 1. . . .

In re Estate of Ciuccarelli, 81 A.3d 953, 955-57 (Pa. Super. 2013)

(footnotes omitted) (emphases added).      This Court “conclude[d] that the

Trial Division erred when it dismissed Appellant’s claims against Attorney

Waltz and TD Bank. This controversy fell under the mandatory and exclusive

jurisdiction of the Orphans’ Court Division, and the Trial Division was

obligated to transfer the case to the proper forum.” Id. at 961. We thus

remanded the case, vacated the order and relinquished jurisdiction. Id. at

962.

       Upon remand, the Orphans’ Court sustained the preliminary objections

of Appellees’ TD Bank and Attorney Waltz and dismissed Appellants’

complaint with prejudice.    Order, 4/2/14. This timely appeal followed.




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Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

     At this juncture we note, in the 2010 complaint in the underlying

escrow case, Appellant and Eileen Caruso raised claims against TD Bank for

breach of warranty. Appellants’ Complaint, 7/8/10, at 3. They stated claims

against C. George Milner, Esq. for fraud, material representation, forgery

and breach of contract. Id. at 5, 7. Appellant and Eileen Caruso stated a

cause of action against Christine Embry Waltz, Esq. for breach of contract

and fiduciary duty.   Id. at 8.   The complaint stated that “[a]t all times

material to this cause of action, [Appellant, Eileen Caruso and Appellees]

were parties to a written agreement [Stipulation and Consent to Sale of Real

Estate] executed on July 30, 2007”. Id. at 1.

     The parties signed the following Stipulation and Consent to Sale of

Real Estate, which provided:

        1. Christine Embery Waltz, Esquire, executed an
        agreement of sale to sell premises 2425 Brownsville Road,
        Feasterville PA for $276, 750.

        2. Eileen Caruso filed a petition of appeal from the decree
        of the Register of Wills granting letters of administration
        CTA to Christine Embery Waltz, Esquire.

        3. Eileen Caruso and her spouse, [Appellant], consent to
        the sale of 2425 Brownsville Road, Feasterville, PA for a
        gross sale price of $276, 750.[2]


2
  We note that that the original stipulation in the record contains
handwritten corrections as to the amount of the sale of the property. The



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           4. The net proceeds of the sale shall be escrowed
           pending determination of the petition of appeal filed
           by Eileen Caruso.

Id. at Ex. “A” (emphasis added).

      Appellant raises the following issues for our review:

           1.Whether the [c]ourt erred and abused its discretion in
           dismissing Appellant’s escrow forgery claims because of its
           prior ruling in the estate case in which the escrow occurred
           to set aside [Decedent’s] will for undue influence for
           reasons unrelated to the breach of contract, forgery and
           fraud by the personal representative and attorney for the
           estate causing damage to [A]ppellant?

           2. Whether or not the [c]ourt erred and abused its
           discretion in sustaining Appellee[‘s], TD Bank’s Preliminary
           Objections to Appellants’ complaint in the form of a
           speaking demurrer because Appellant lacked standing to
           sue in the estate case in which the escrow occurred
           involving different issues, different parties and different
           claims for damage?

Appellant’s Brief at 3.

      First, Appellant contends the court erred in dismissing the escrow

forgery claims against C. George Milner, Esq. and Christine Embry Waltz,

Esq, Administratrix CTA of the Estate of Gaetano Ciuccarelli based upon

Eileen Caruso’s lack of standing in the estate case. Appellant avers the two

cases were distinct, and thus “one case cannot legally preclude the other

under any legal theory contrary to the holding of the lower court in the case

at bar.”     Id. at 23-24.     Second, Appellant argues the court erred in

typewritten amount was $276,759. A copy of the stipulation was attached
to the complaint.



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sustaining Appellee’s, T.D. Bank’s, preliminary objections to its complaint

based upon Elieen Caruso’s lack of standing in the estate case.

      As a threshold matter, we address the issue of whether Appellant has

standing in the instant case.

      Our standard of review is well-established:

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

In re Estate of Pendergrass, 26 A.3d 1151, 1153 (Pa. Super. 2011)

(citations omitted).

      In In re Estate of Cuiccarelli, 83 EDA 2011, this Court “agree[d]

with the Orphans’ Court that [Appellant] lack[ed] standing to

contest the 2006 Will.” Id. at 8-9 (emphasis added).

      Pennsylvania Rules of Civil Procedure 1028 governs preliminary

objections:

         (a) Preliminary objections may be filed by any party to any
         pleading and are limited to the following grounds:

                                    *    *    *

              (4) legal insufficiency of a pleading (demurrer)[.]




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Pa.R.C.P. 1028(a)(4). “[A] complaint filed by a party who lacks standing is

subject to demurrer.” Morrison Informatics, Inc. v. Members 1st Credit

Union, 97 A.3d 1233, 1242 (Pa. Super. 2014). “A challenge to the standing

of a party to maintain the action raises a question of law.” Fumo v. City of

Philadelphia, 972 A.2d 487, 496 (Pa. 2009).

     In the case sub judice, the Orphans’ Court opined:

           The present action involves claims by Appellant that
        funds from the sale of [Decedent’s] home were transferred
        under an unauthorized, forged signature.           It is
        undisputed that the funds in question are from the
        sale of the Decedent’s home. As such, they are an
        asset of the Estate of Gaetano Ciuccarelli and must
        be distributed─upon administration of the estate─to
        the beneficiaries named in the Decedent’s will.

           The final and uncontestable holding of our Supreme
        Court[3] is that Eileen Caruso and Appellant as
        Administrator of her Estate is not a beneficiary of
        the Estate of Gaetano Ciuccarelli. Even if we assume
        the endorsement was forged, Appellant has no interest nor
        suffers any discernible effect from Appellees’[4] purported
        actions. Further, allegations that Appellees violated the
        escrow agreement giving rise to this cause of action are
        incorrect and not sustainable by the uncontroverted facts.
        Specifically, the escrow agreement provided “the net
        proceeds of the sale shall be escrowed pending
        determination of the petition of appeal filed by Eileen
        Caruso.”      At the time of the endorsement, the
        determination of the Will Contest had been made, and

3
  The Pennsylvania Supreme Court denied allowance of appeal in the
underlying estate case; as stated above, the Superior Court had determined
that Eileen Caruso did not have standing to contest the will. See Estate of
Ciuccarelli, 229 EAL 2012 (Pa. 2012).
4
 The Orphans’ Court sustained the preliminary objections of TD Bank and
Christine Embry Waltz, Esq.



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          later became final, with Eileen Caruso and Appellant, as
          administrator of her Estate, never having been successful
          on the merits of any stage of the proceedings.

                                    *     *      *

             A   party    lacking     standing   may      be   dismissed
          preliminarily, before trial, on motion. . . .

Orphans’ Ct. Op., 5/21/14, at 9-10, 13.

        The Orphans’ Court found Appellant lacked standing and dismissed the

case.    Id. at 13.   We agree no relief is due.     We discern no error by the

Orphans’ Court.       See In re Estate of Pendergrass, 26 A.3d at 1153.

Accordingly, we affirm the order sustaining the preliminary objections and

dismissing the complaint.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2014




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