J-A27030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF PETER S. WHITBY                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA


                     v.

APPEAL OF: ROBERTA LAROCCA

                                                        No. 561 EDA 2018


                Appeal from the Order Dated January 19, 2018
            In the Court of Common Pleas of Montgomery County
                     Orphans' Court at No: 2011-X3807


BEFORE: BOWES, and STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                         FILED FEBRUARY 22, 2019

      Appellant, Roberta LaRocca, appeals pro se from the January 19, 2018

order assessing surcharges against Appellant and her husband, Richard

LaRocca (“Richard”), and imposing a constructive trust on property located at

78 West Indian Lane, Norristown, Montgomery County, Pennsylvania.            We

affirm.

      Appellant   and     Richard   engaged   in   an   elaborate   scheme   to

misappropriate funds from the decedent, Appellant’s stepfather Peter S.

Whitby (“Peter”). The record reflects that the couple misappropriated nearly

$1.5 million from Peter and spent it on lavish renovations to their home. The

trial court recited the pertinent facts:

            Peter S. Whitby (hereinafter “Peter”) was in declining health
      and having difficulty managing his affairs when he named his
      step-daughter, [Appellant] and her then-husband Richard
J-A27030-18


     LaRocca as co-agents under a power of attorney signed on July
     11, 2006.

            After the death of Peter on October 11, 2002, his son,
     Kenneth Whitby (hereinafter “Kenneth”), one of the co-executors
     of his estate, sought an order compelling [Appellant] and Richard
     to file an account with respect to their handling of Peter’s assets.
     The former co-agents failed to file an account in accordance with
     the court’s order dated June 6, 2012. On November 2, 2012, the
     court held both [Appellant] and Richard in contempt of that order.

                                    [***]

           There is more to be said about the procedural history of this
     matter. However, it is important to note at the outset that, during
     the course of this lengthy litigation initiated by Kenneth against
     [Appellant] and Richard, Roberta filed for divorce in the
     Montgomery County Court of Common Pleas, without assistance
     of counsel. Less than a year later, a judge of the Family Division
     granted the divorce and approved a property settlement
     agreement in which Richard agreed to transfer title to all of the
     real estate owned by the couple to [Appellant’s] sole name. Thus,
     [Appellant] and Richard agreed effectively to render Richard
     judgment-proof, and to have another division of this court
     approve the retitling of their home. This action contravened the
     order entered by the Honorable Stanley R. Ott on January 10,
     2014, which enjoined the transfer of the assets they owned
     pending the resolution of this litigation. In his testimony before
     the undersigned, Richard acknowledged that the marital
     settlement agreement regarding the ownership of their real
     property was signed after the date of Judge Ott’s order. Richard
     also agreed that, despite the express terms of the marital property
     agreement, he and [Appellant] had a ‘side agreement’ regarding
     the ultimate distribution of certain of their assets, which he did
     not explain.

                                    [***]

           This court does not find credible or particularly relevant
     [Appellant’s] explanation that, although she allows Richard to stay
     in the home, they are not husband and wife. More believable and
     congruous is a scenario whereby the parties obtained a sham
     divorce by proceeding pro se and entered into a sham property
     agreement while deliberately misleading the court and opposing


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J-A27030-18


     counsel for months regarding the fact that Richard continued to
     live in the marital home.

                                    [***]

           Kenneth, Kay [Peter’s wife] and [Appellant] reached a
     stipulation that was filed with the court on January 8, 2016,
     regarding many of the relevant facts. By the start of the hearing,
     Richard, who was representing himself, had not agreed to the
     stipulation. However, during the hearings, Richard did agree and
     the stipulation was made a part of the record and introduced into
     evidence as Exhibit RO-32. The facts as stipulated are as follows:

                 Peter died on January 5, 2011. He was survived by
                  Kay, his wife of 27 years, and by five other children
                  from a prior marriage. Peter’s daughter, Elizabeth,
                  renounced her right to serve as executrix of his estate.
                  On May 20, 2011, Kenneth and Kay qualified as
                  executors and received letters testamentary.

                 Peter married Kay on June 4, 1983. Kay’s children
                  from her prior marriage include her daughter,
                  [Appellant]. [Appellant] was married to Richard in
                  1986.

                 Peter and Kay resided at Shannondell at Valley Forge
                  (“Shannondell”), an assisted care facility located in
                  Eagleville, Montgomery County, from early 2005 until
                  Peter’s death in 2011.

                 On May 2, 2006, [Appellant] became Peter’s agent
                  under a limited power of attorney to conduct certain
                  business for him related to litigation over Peter’s
                  interest in real property in Glenside known as ‘Roberts
                  Block.’

                 On July 7, 2006, [Appellant] emailed attorney James
                  Walker from the law firm of Hamburg Rubin Mullin
                  Maxwell & Lupin (hereinafter ‘Hamburg Rubin’) that
                  ‘Rich and I will act as co-attorneys for Pete.’ On July
                  11, 2006, Peter signed a durable general power of
                  attorney appointing [Appellant] and Richard as his
                  agents.




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                 As of July 11, 2006, Peter’s and Kay’s assets included,
                  inter alia:

                     o A brokerage account at AG Edwards held in
                       Peter’s name alone which then was valued at
                       approximately $665,960.07;

                     o An IRA and a SEP IRA held at Raymond James
                       in Peter’s name alone but of which Peter named
                       Kay the sole beneficiary upon his death and
                       which had a combined value of roughly
                       $589,171;

                     o A ‘Gold Checking’ account at Citizens Bank titled
                       in Peter’s and Kay’s names as joint tenants with
                       rights of survivorship, which had a value of
                       approximately $27,997.00.

                     o A Citizens Bank money market account titled in
                       Peter’s and Kay’s names as joint tenants with
                       rights of survivorship which had a value of
                       approximately $79,177.00; and

                     o An interest as mortgagee (in Peter’s name only)
                       in the Roberts Block property.

                 On July 14, 2006, represented by Hamburg Rubin and
                  with [Appellant] acting as his agent, Peter began
                  mortgage foreclosure proceedings related to the
                  Roberts Block property.       [Appellant] verified the
                  foreclosure complaint as agent. In this fiduciary
                  capacity, [Appellant] also verified Peter’s reply to new
                  matter and counterclaim on October 13, 2006. In
                  addition to the mortgage foreclosure actions,
                  [Appellant] also acted as agent for Peter with respect
                  to obtaining fire insurance and pursuing a claim
                  following an August 2006 fire at the Roberts Block
                  property. The Roberts Block litigation included three
                  separate civil actions filed in the Court of Common
                  Pleas of Montgomery County, Civil Division, at docket
                  nos. 2006-20490, 2007-03112, and 2008-11763. On
                  November 1, 2006, [Appellant] as ‘P.O.A. for Peter
                  Whitby’ signed a ‘Sworn Statement and Proof of Loss’
                  relating to the fire claim. On November 6, 2006,
                  [Appellant] submitted to an examination under oath

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J-A27030-18


                  in connection with the claim. [Appellant] eventually
                  consented to a settlement on behalf of Peter which
                  resulted in the following payments:

                 A check for $253,463.38 which Hamburg Rubin
                  delivered to Richard on April 24, 2007, and which
                  Richard deposited into Peter’s and Kay’s joint account
                  at Citizen’s Bank; and

                 A check for $151,996 which Richard deposited into
                  Peter’s and Kay’s joint account at Citizens Bank on
                  December 11, 2008.

            The stipulation set forth the following with regard to
     transfers from accounts in Peter’s sole name and from those in
     joint names with Kay:

                 Between January 10, 2007 and February 25, 2008,
                  $682,404.84 was transferred from Peter’s AG
                  Edwards account in to Peter’s and Kay’s joint accounts
                  at Citizens Bank.

                 Between November 13, 2007 and October 20, 2008,
                  $555, 657.21 was transferred from Peter’s Raymond
                  James IRAs to Peter’s and Kay’s joint accounts at
                  Citizens Banks.

                 Beginning in July 2006, substantial amounts were
                  transferred from Peter’s and Kay’s joint accounts at
                  Citizens Bank to Citizens Bank accounts ending in the
                  numbers 3731 and 3723 in the name of Richard
                  LaRocca.

                 [Appellant’s] signature, either in her individual
                  capacity or as agent for Peter, does not appear on any
                  checks or withdrawal slips used to effectuate the
                  transfers from the Whitbys’ joint account to the
                  accounts ending in numbers 3731 and 3723.

                 In addition to her involvement as agent for Peter in
                  the Roberts Block civil actions, [Appellant] began
                  signing checks payable to Peter’s health care and
                  assisted care providers, as his agent on April 26,
                  2010. (That the checks that [Appellant] as agent
                  wrote to the health care aides and care providers were


                                    -5-
J-A27030-18


                 for Peter’s benefit is not disputed and these checks
                 are not at issue in this litigation).

            The objectants assert, and Richard does not deny, that after
     a copy of the power of attorney was provided to the investment
     advisors, Richard transferred Peter’s investment funds to a joint
     account of Peter and [his wife] at Citizens Bank. There is no
     dispute that Richard also deposited into the Whitbys’ account to
     two checks received with respect to the fire insurance litigation.
     As stipulated by the parties, and acknowledged by Richard, the
     transfers from assets belonging solely to Peter into the Whitbys’
     joint account totaled $1,642,521.43 between January 1, 2007 and
     December 11, 2008.

           These transfers made by Richard as agent may be referred
     to as ‘step one’ of the scheme. Although the monies were
     transferred to a joint account of Peter and Kay, in which Richard
     and [Appellant] had no interest, the transfers are significant. It
     was established that Richard thereafter made the ‘substantial’
     transfers from the Whitbys’ joint accounts at Citizens Bank to his
     own accounts at Citizens Bank using his online profile. Richard’s
     evasiveness and equivocation were evident in his attempt to deny
     that he made these transfers ‘under the power of attorney.’ [….]
     Richard directed the bank statements to be addressed to Peter but
     sent to 79 West Indian Lane, an address that [Appellant] used to
     receive mail but at which she advised that she did not reside. As
     a result of presenting himself to Citizens Bank as a fiduciary for
     Peter, Richard gained the authority to make transfers from these
     joint accounts, and exercised it, primarily, by logging in online.
     These online transfers may be considered ‘step-two’ of the
     scheme.

            From January 2007 through February 2009, Richard took a
     total of $902,860.27 of Peter’s funds from his joint accounts at
     Citizens Bank and placed the money in two Citizens Bank accounts
     in his own name[….]

           From August 2007 through November 2010, Richard
     transferred at least an additional $592,200 of Peter’s funds into
     his own accounts[….] Although counsel for the objectants assert
     that the total is even higher, there is no dispute that the bank
     records reflect transfers by Richard into accounts in his own name
     in the total amount of $1,432,060.27.

                                   [***]

                                    -6-
J-A27030-18


              Richard, having misappropriated Peter’s funds, next
       engaged in ‘step three’ of the scheme—using the funds for his and
       [Appellant’s] extravagant home renovations in an effort to conceal
       his ill-gotten gains and defeat any party who would seek to
       recover Peter’s funds. Richard used the funds in his bank accounts
       to spend more than $1 million on contractors and materials related
       to improvements at his and [Appellant’s] home at 78 West Indian
       Lane over a period of two and a half years from September 2006
       through March of 2009.

             Finally, in ‘step four’ of the scheme, [Appellant] and Richard
       agreed to a sham divorce and to impoverish Richard by
       transferring their property to [Appellant] as part of their strategy
       to divest Richard of any assets that would otherwise be available
       to repay Peter’s estate.

Trial Court Opinion, 1/19/18, at 1-10 (record citations omitted).

       After the November 2, 2012 order holding Appellant and Richard in

contempt, the orphans’ court directed them to file an account on or before

January 20, 2013. They failed to meet that deadline, but Richard filed an

account on May 3, 2013, and Appellant filed an account on May 6, 2013. On

January 10, 2014, the orphans’ court filed an order forbidding Appellant and

Richard to transfer any assets pending the outcome of this action. Appellant

and Richard violated that order in their 2015 divorce proceedings. Kenneth

filed objections to Appellant’s account on June 28, 2013, and Kenneth and Kay

filed supplemental objections to Appellant’s account on August 31, 2016.1 The

orphans’ court held nine days of hearings in December of 2016 and January

of 2017.


____________________________________________


1  The matter apparently was drawn out by Appellant’s and Richard’s failure
to cooperate with various discovery requests.

                                           -7-
J-A27030-18


      Appellant’s pro se brief contains only her own self-serving account of

the facts. She blames Richard for the wrongdoing and claims she was unaware

of his activities. Appellant cites no law in support of her appellate arguments,

and, for that reason alone, she cannot obtain relief on this appeal. In re R.D.,

44 A.3d 657, 674 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012)

(“We will not act as counsel and will not develop arguments on behalf of an

appellant. Moreover, when defects in a brief impede our ability to conduct

meaningful appellate review, we may dismiss the appeal entirely or find

certain issues to be waived.”).

      Even were we to consider the merits, Appellant could not obtain relief.

The governing standard is well settled:

            When an appellant challenges a decree entered by the
      [o]rphans’ [c]ourt, our standard of review requires that we be
      deferential to the findings of the [o]rphans’ [c]ourt.

             [We] must determine whether the record is free from legal
      error and the court’s factual findings are supported by the
      evidence. Because the [o]rphans’ [c]ourt 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 Staico, 143 A.3d 983, 987 (Pa. Super. 2016) (internal citations and

quotation marks omitted), appeal denied, 166 A.3d 1221 (Pa. 2017).

      The evidence, as set forth extensively above, overwhelmingly refutes

Appellant’s assertion that she was unaware of Richard’s misappropriation of



                                     -8-
J-A27030-18


funds. In addition to the facts described above, we observe that Richard had

been unemployed since 2004.      Despite this, Appellant claims she did not

question where Richard got the funds to pay for a seven-figure renovation to

their home.

      Because Appellant has not developed a legal argument, and because the

record overwhelmingly fails to support her account of the facts, we affirm the

orphans’ court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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