J-A04020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: THE ESTATE OF HAROLD DIEHL              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: MARJORIE DIEHL-
ARMSTRONG
                                                       No. 911 WDA 2014


                Appeal from the Order Dated May 6, 2014
               In the Court of Common Pleas of Erie County
                   Orphans' Court at No(s): 2014-00054


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 27, 2015

     Appellant, Marjorie Diehl-Armstrong, appeals from the order entered

on May 6, 2014, which denied Appellant’s Petition to Revoke Letters

Testamentary and for Probate of Will. We affirm.

     The Orphans’ Court thoroughly and ably summarized the underlying

facts of this case. As the Orphans’ Court explained:

        Harold Diehl [(hereinafter “Decedent”)] died on January 8,
        2014 [and was] survived by one child, [Appellant].

        On February 13, 2014, George and Mary Jane Brabender
        filed a Petition for Probate and Grant of Letters offering for
        probate a December 9, 2005 Last Will and Testament of
        [Decedent].      By a February 13, 2014 Decree of the
        Register, Letters Testamentary were granted to George and
        Mary Jane Brabender and the December 9, 2005 Last Will
        and Testament was admitted to probate and filed of record
        as [Decedent’s] Last Will.

        On March 10, 2014, [Appellant] filed her Petition to
        Revoke[,] requesting that the [Orphans’] Court revoke the
        letters  testamentary    granted   to   the   Brabenders.

*Retired Senior Judge assigned to the Superior Court.
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       [Appellant’s] Petition further requested probate of a
       February 4, 2008 instrument attached to the Petition to
       Revoke as [Decedent’s] last will and testament and to issue
       letters testamentary to [Attorney] Lawrence A. D’Ambrosio.

       The Estate of Harold Diehl, on May 1, 2014, filed an Answer
       and New Matter to the Petition to Revoke [and alleged] that
       the February 4, 2008 instrument was invalid. Specifically,
       the executors alleged that the [Decedent] was not of sound
       mind when he signed the February 4, 2008 instrument and
       that he was the victim of fraud perpetrated by [Appellant,]
       who previously plotted to murder him, and Lawrence A.
       D’Ambrosio, [who was Appellant’s] attorney.[fn.1] . . .

          [fn.1] In 2010, [Appellant] was convicted on charges of
          armed bank robbery, conspiracy[,] and using a
          destruction device in a crime of violence for her role in
          the infamous “Pizza Bomber” case – the bank robbery
          that killed Brian Wells. . . . [See] United States District
          Court for the Western District of Pennsylvania Docket
          No. 1-07-CR-00026-001. The [United States] Court of
          Appeals for the Third Circuit posited [that Appellant was]
          concerned that her father[, Decedent,] was squandering
          her inheritance [and that she] hatched the bank robbery
          plot in an attempt to obtain the funds to have
          [Decedent] killed.      See United States v. Diehl-
          Armstrong, 504 F. App’x 152, 153-154 (3rd Cir. 2012),
          cert. denied, 133 S.Ct. 958 (U.S. 2013).

       [On May 6, 2014, the Orphans’ Court held a hearing on
       Appellant’s Petition to Revoke.    As the Orphans’ Court
       explained, from the evidence that was presented during the
       May 6, 2014 hearing, it arrived at the following well-
       supported factual conclusions:]

                                    ...

       Attorney Lawrence A. D’Ambrosio and [Appellant] have a
       long-standing relationship, including that of attorney-client.
       Attorney D’Ambrosio has known [Appellant] since the early
       [1970s]. [Attorney D’Ambrosio] has served as [Appellant’s]
       counsel over the years, including in 2000 when he
       represented her in a civil matter in which she attempted to
       remove [Decedent], her own father, as the administrator of

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       his wife’s [(Appellant’s mother’s)] estate. In the 2000
       proceeding against [Decedent], Attorney D’Ambrosio alleged
       on [Appellant’s] behalf that [Decedent] had many medical
       problems, including symptoms of obstinacy and impairment
       of judgment and that it [would] be advisable to have a
       guardian appointed to protect him from designing persons.
       This action by [Appellant] was very upsetting to [Decedent]
       and the two became estranged.         Decedent expressed
       concerns to friends that [Appellant] wanted his estate,
       which he did not want to happen.

       Accordingly, on November 9, 2000, [Decedent] executed a
       holographic will leaving the bulk of his estate to charity and
       [to] individuals other than [Appellant].        The bequests
       included $100,000[.00] to Shriners Hospital, $300,000[.00]
       to Edinboro University, $100,000[.00] to his sister-in-law,
       Mabel Diehl, $350,000[.00] in bonds to his neighbors, the
       Kendrath family, a $75,000[.00] bond to neighbor Pearl
       Owsiejko, a       $75,000[.00] bond to         neighbors,    a
       $100,000[.00] bond to Phyllis Zack, a $40,000[.00] bond to
       Jack Martin of Dusckas Funeral Home, a $65,000[.00] bond
       to the Kay Sutton family[,] and a $100,000[.00] bond to
       Susan Miller. The 2000 Will left only a $100,000[.00] bond
       to [Appellant].     The Will named Dorothy Kendrath as
       executor.

       Thereafter, [Decedent] began giving away money. He gave
       “$5,000[.00] checks to almost everybody and anybody.”
       He also delivered $100,000[.00] and $50,000[.00] bonds to
       people. During this process, [Decedent] gifted a total of
       nearly [$1,000,000.00] to different individuals, primarily
       those named in the 2000 Will.

       On December 9, 2005, [Decedent] executed a Last Will and
       Testament prepared by Attorney Sumner Nichols.
       Consistent with the 2000 Will, the 2005 Will left only a
       minimal amount to [Appellant] while the bulk of the estate
       was to be distributed to [Decedent’s] friends. Specifically,
       the 2005 Will left to [Appellant], who was incarcerated at
       [the State Correctional Institute – Muncy], only
       $2,000[.00]. Pursuant to the 2005 Will, Pearl Owsiejko was
       to receive $5,000[.00], John and Beverly Ott were to
       receive $5,000[.00], and Jack Martin $2,000[.00].
       Decedent further left all of the possessions within his

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J-A04020-15


       residence to George and Mary Jane Brabender.        The
       residuary estate was to go 25% to George and Mary Jane
       Brabender, 25% to Susan Miller, 20% to Dorothy Kendrath,
       10% to Mabel Diehl[,] and 20% to Sharon Easton. Finally,
       the Will appointed George and Mary Jane Brabender as co-
       executors.

       During 2006 and 2007, Attorney D’Ambrosio continued his
       representation of [Appellant] through civil proceedings
       attempting to recover some of her property. Around the
       same time, Attorney D’Ambrosio began visiting [Decedent]
       at his residence in attempts to reconcile him with
       [Appellant]. The two were estranged regarding the battle
       [over Decedent’s] wife’s estate as well as [over] the well-
       known allegations that [Appellant] engaged in criminal
       activity in an attempt to raise money to have [Decedent]
       killed. Decedent was aware that the alleged motive in the
       Pizza Bomber case was for [Appellant] to raise money
       toward the $250,000[.00] contract for [Decedent’s] murder.
       With regard to [Appellant], [Decedent] declared: “If she
       needed money she wouldn’t ask me; she would kill me
       first.”   Attorney D’Ambrosio told [Decedent] that the
       statements regarding [Appellant’s] murder plot against him
       were simply untrue statements made by accomplices.
       Attorney D’Ambrosio’s visits occurred every couple of
       months with reports back to [Appellant, whom] he visited
       monthly, on the progress.

       During 2007 and 2008, the Brabenders were increasingly
       assisting [Decedent] with his needs, including grocery
       shopping, taking him to health care appointments, helping
       him pay his bills, etc. In 2008, [Decedent] did not even
       know what he was signing when neighbors assisted him by
       writing out the checks for him to pay his bills. On May 5,
       2008, George Brabender informed [Decedent’s] health care
       provider of his concern that [Decedent] needed 24-hour
       surveillance. Mr. Brabender noted that [Decedent] had
       memories of events occurring in [the] distant history of his
       life, but [that he was not] clear on present events. Mr.
       Brabender further observed [Decedent] forgetting to turn
       off pots of water and finding them charred on the stove.

       Attorney D’Ambrosio testified that [Decedent] contacted
       him in January [] 2008 to come to his home and prepare a

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J-A04020-15


        will for him. According to Attorney D’Ambrosio, [Decedent]
        wanted to assure [Appellant] that she would have a place to
        live once she was released from incarceration. The intent of
        the will was simply to solely leave [Decedent’s] residence, a
        very modest home, to [Appellant]. . . .

        [The resulting] February 4, 2008 instrument was signed by
        [Decedent] at his home when Attorney D’Ambrosio,
        [Attorney D’Ambrosio’s] paralegal/secretary Loretta Susan
        Balog, and Charles Black, who is a client of [Attorney]
        D’Ambrosio’s, went to [Decedent’s] home.            Attorney
        D’Ambrosio testified that [Decedent] showed no signs of
        mental incapacity at the time that he signed the February 4,
        2008 will. Attorney D’Ambrosio reported to [Appellant] that
        [Decedent] had signed such a will. Attorney D’Ambrosio did
        not charge [Decedent] any fee for the preparation of the
        will. [Decedent] never mentioned to the Brabenders, who
        were his good friends, that Attorney D’Ambrosio revised his
        Will or that Attorney D’Ambrosio was his attorney.

Orphans’ Court Opinion, 8/1/14, at 1-6 (internal citations omitted).

      On May 6, 2014, the Orphans’ Court entered an order denying

Appellant’s Petition to Revoke Letters Testamentary and for Probate of the

February 4, 2008 will. After Appellant filed a timely notice of appeal from

the Orphans’ Court’s May 6, 2014 order, the Orphans’ Court ordered

Appellant to file a concise statement of errors complained of on appeal,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).          Appellant

complied and raised the following claims in her Rule 1925(b) statement:

        1. Whether proponents of an earlier will met their burden of
        proving that [Decedent] was incompetent at the time he
        executed his final will on February 4, 2008[?]

        2. Whether proponents of an earlier will met their burden of
        proving that the will executed by [Decedent] on February 4,
        2008 was not a valid will under the law of Pennsylvania[?]


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          3. Whether the [Orphans’] Court should have excluded
          evidence of a prior dispute in 2000 between [Decedent] and
          [Appellant] in ruling on the validity of a 2008 will in which
          [Appellant] was the sole beneficiary[?]

Appellant’s   Rule   1925(b)   Statement,    6/19/14,   at   1   (some     internal

capitalization omitted).

      Appellant now raises the following claim to this Court:

          Whether the [Orphans’] Court made an error of fact when it
          found that a 2000 will left “next to nothing” when it had left
          [Appellant] a $100,000.00 bond, and this error led it to
          invalidate the 2008 will[?]

Appellant’s Brief at 4.

      On appeal, Appellant’s claim is that the Orphans’ Court “made an error

of fact” in its Rule 1925(a) opinion. Appellant did not raise this claim in her

court-ordered Rule 1925(b) statement.       Instead, Appellant’s Rule 1925(b)

statement simply claimed:       1) that the “proponents of [the] earlier will”

failed to meet their “burden of proving that [Decedent] was incompetent at

the time he executed his final will on February 4, 2008;” 2) that the

“proponents of [the] earlier will” failed to meet their “burden of proving that

the will executed by [Decedent] on February 4, 2008 was not a valid will;”

and, 3) that the Orphans’ Court committed an evidentiary error during the

hearing. Appellant’s Rule 1925(b) Statement, 6/19/14, at 1 (some internal

capitalization omitted). Therefore, since Appellant failed to raise the current

claim in her court-ordered Rule 1925(b) statement, the claim is waived on

appeal.     Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule


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J-A04020-15


1925(b) s]tatement . . . are waived”); Commonwealth v. Castillo, 888

A.2d 775 (Pa. 2005) (in order to preserve their claims for appellate review,

appellants must comply whenever the trial court orders them to file a [Rule

1925(b) statement]. Any issues not raised in a Pa.R.A.P. 1925(b) statement

will be deemed waived”) (internal quotations and citations omitted); see

also In re Estate of Boyle, 77 A.3d 674 (Pa. Super. 2013) (same).1

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




____________________________________________


1
 Moreover, even if Appellant’s issue on appeal were not waived, it would be
meritless for the reasons set forth in the trial court’s thorough and cogent
opinion. See Trial Court Opinion, 8/1/14.



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