Opinion
J-A16015-15 No. 2391 EDA 2014 No. 2795 EDA 2014
06-26-2015
ESTATE OF: SIDNEY ROTHBERG, DECEASED APPEAL OF: MICHAEL ROTHBERG ESTATE OF: SIDNEY ROTHBERG, DECEASED APPEAL OF: LYNN KEARNEY
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree July 21, 2014 in the Court of Common Pleas of Philadelphia County
Orphans' Court at No.: 673AP of 2009
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
In these consolidated cases, Appellants Michael Rothberg (Rothberg) and Lynn Kearney (Kearney), appeal from the Orphans' court decree denying their petitions challenging the will of decedent, Sidney Rothberg (Decedent), dated January 21, 2002, offered for probate by Appellee, Saranne Rothberg-Marger. We affirm.
Kearney is acting pro se in this appeal.
In its July 21, 2014 Findings of Fact, Discussion, and Conclusions of Law, the trial court fully and correctly sets forth the factual and procedural history of this case. ( See Trial Court Opinion, 7/21/14, at 1-12). Therefore, we have no reason to restate them here.
The opinion is dated July 18, 2014, and was filed on July 21, 2014.
Rothberg raises nine issues for this Court's review:
We have renumbered most of Rothberg's issues for ease of analysis and disposition.
[1.] Whether the trial court erred as a matter of law or abused its discretion in refusing to disqualify counsel for [Appellee], who also claimed to represent the estate and [Appellee's] sole corroborating witness, and who had previously received extensive confidential information from [Rothberg] during several consultations[?](Rothberg's Brief, at 3-4).
[2.] Whether the trial court's conclusion that the evidence at trial established that [D]ecedent was a Pennsylvania domiciliary at the time of his death was clearly erroneous[?]
[3.] Whether the trial court abused its discretion in permitting [Appellee] to deliberately conceal evidence regarding a key event in the case while crediting the testimony of an admittedly biased and perjured witness on that same issue[?]
[4.] Whether the trial court erred as a matter of law or abused its discretion by holding that the evidence (including evidence that [Appellee] and her sole corroborating witness misrepresented [Rothberg's] intentions to Decedent, together with the forged witness signature), failed to establish undue influence directly[?]
[5.] Whether the trial court erred as a matter of law or abused its discretion by concluding that the evidence failed to establish a presumption of undue influence[?]
6. Whether the trial court's conclusion that the uncontradicted evidence at trial failed to prove insane delusion was clearly erroneous[?]
7. Whether the trial court's conclusion that the evidence at trial failed to prove fraud was clearly erroneous[?]
[8.] Whether the trial court erred as a matter of law or abused its discretion by ignoring the uncontradicted evidence that the purported witness signature on the probated will of the [D]ecedent is a forgery[?]
[9.] Whether the forged witness signature of the probated will undermines the will's authenticity as a matter of law[?]
The appropriate scope and standard of review on appeal from a decree of the Orphans' Court adjudicating an appeal from probate is as follows:
In re Estate of Nalaschi , 90 A.3d 8, 11 (Pa. Super. 2014) (citation omitted).In a will contest, the hearing judge determines the credibility of the witnesses. The record is to be reviewed in the light most favorable to appellee, and review is to be limited to determining whether the trial court's findings of fact were based upon legally competent and sufficient evidence and whether there is an error of law or abuse of discretion. Only where it appears from a review of the record that there is no evidence to support the court's findings or that there is a capricious disbelief of evidence may the court's findings be set aside.
Kearney joins and adopts the contents of Rothberg's brief and raises additional "points" for consideration. ( See Kearney's Brief, at 2-3). However, Kearney's pro se brief utterly fails to conform to our rules of appellate procedure. Significantly, it does not include a statement of the questions involved, in violation of Pennsylvania Rule of Appellate Procedure 2116. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby"). The brief primarily consists of a narrative summarizing her view of the facts of this case, with no discussion of legal authority to support her claims. See Pa.R.A.P. 2119(a),(b); see also Pa.R.A.P. 2101 ("[I]f the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed"); In re Estate of Whitley , 50 A.3d 203, 209 (Pa. Super. 2012), appeal denied, 69 A.3d 603 (Pa. 2013) ("Failure to cite relevant legal authority constitutes waiver of the claim on appeal.") (citation omitted).
We note with respect to Kearney's pro se status that, while we are willing to construe liberally the materials she filed, she "is not entitled to any particular advantage because she lacks legal training." Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) ("[A]ny layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing.") (citations omitted).
Accordingly, we deem the issues raised in Kearney's defective brief waived.
In the first issue, Rothberg argues that the trial court erred by denying his motion to disqualify Karl Prior, Esq., counsel for Appellee. ( See Rothberg's Brief, at 81; Decree, 12/28/11, at 1). Rothberg claims that Mr. Prior's disqualification was necessary because, in the weeks following Decedent's death, he contacted Mr. Prior as a prospective client seeking representation and disclosed potentially harmful information, including his thoughts and impressions about the case. ( See Rothberg's Brief at 82, 87, 89-90 (citing Pennsylvania Rule of Professional Conduct 1.18, Duties to Prospective Clients)). This issue does not merit relief.
When reviewing a trial court's order on disqualification of counsel, we employ a plenary standard of review. Courts may disqualify attorneys for violating ethical rules. On the other hand, courts should not lightly interfere with the right to counsel of one's choice. Thus, disqualification is appropriate only when both another remedy for the violation is not available and it is essential to ensure that the party seeking disqualification receives the fair trial that due process requires.Weber v. Lancaster Newspapers , Inc., 878 A.2d 63, 80 (Pa. Super. 2005), appeal denied, 903 A.2d 539 (Pa. 2006) (citations and quotation marks omitted).
A court's authority to disqualify counsel based on Rules of Professional Conduct is limited. In In re Estate of Pedrick , . . . 482 A.2d 215 ([Pa.] 1984), our Supreme Court stated that "this court has held in several cases that counsel can be disqualified for violations of the Rules of Professional Conduct where disqualification is needed to ensure the parties receive the fair trial which due process requires." Pedrick , [ supra ] at 221 (emphasis added). Our Supreme Court continued:
Thus, while it may be appropriate under certain circumstances for trial courts to enforce the Code of Professional Responsibility by disqualifying counsel or otherwise restraining his participation or conduct in litigation before them in order to protect the rights of litigants to a fair trial, we are not inclined to extend that enforcement power and allow
our trial courts themselves to use the Canons to alter substantive law or to punish attorney misconduct. Id.
In addition, our Supreme Court, in Reilly by Reilly v. SEPTA , . . . 489 A.2d 1291 ([Pa.] 1985), limited the authority of both trial and appellate courts to sanction counsel for violations of the Rules of Professional Conduct as follows:
Perceived violations of [the Pa.R.P.C.] do not permit the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct.
We have not abdicated or delegated any of our supervisory authority in enforcing these standards of conduct to Superior Court. To presume that the Code or its alleged violations can be reviewed by any tribunal other than those we authorize is a misapprehension of the purpose of the Code, and is seen as an impermissible meddling into the administrative and supervisory functions of this Court over the entire judiciary.
Vertical Res., Inc. v. Bramlett , 837 A.2d 1193, 1201-02 (Pa. Super. 2003).
Reilly , [ supra ] at 1299 (emphasis added). Reilly clearly limits the intermediate appellate and trial courts' authority to impose punishments for violations of the Rules of Professional Conduct.
Further, while a trial court can sanction counsel by disqualification based on a violation of the Rules of Professional Conduct, the court must have evidence in the record to support a conclusion that the attorney violated the particular rule at issue. See McCarthy v. Southeastern Pennsylvania Transp. Auth., 772 A.2d 987, 989 (Pa. Super. 2001), appeal denied, 812 A.2d 1230 (Pa. 2002).
Here, Rothberg relies on Pennsylvania Rule of Professional Conduct 1.18 to support his claim that Mr. Prior's disqualification was necessary. ( See Rothberg's Brief, at 87). This rule provides in pertinent part:
Rule 1.18. Duties to Prospective ClientsPa.R.P.C. 1.18.
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal information which may be significantly harmful to that person except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer learned information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). . . .
In the instant case, Mr. Prior testified that he had three telephone conversations with Rothberg as a prospective client, lasting approximately fifteen minutes, forty minutes, and three minutes, respectively. ( See N.T. Hearing, 8/16/11, at 96). During the calls, Rothberg provided Mr. Prior with superficial information about the case, and they discussed the issues of undue influence and testamentary capacity in general, discussing no more information than is available on Prior's law firm's public website. ( See id. 95, 107-08). Mr. Prior further testified that, during his conversations with Rothberg, Rothberg did not disclose any information that was not a matter of public record, discoverable on the Internet, or that Appellee would not have known. ( See id. at 121-22). Mr. Prior decided not to accept Rothberg as a client after he learned through an Internet search that Rothberg was a convicted felon, which raised concerns regarding his credibility. ( See id. at 115-16). Mr. Prior also declined to represent Rothberg because Rothberg asked for a contingent fee arrangement, which was not Prior's typical billing practice. ( See id. at 112). Mr. Prior stated that he did not give Rothberg any legal advice, and that he did not send Rothberg an engagement letter or an invoice. ( See id. at 123, 125-26).
In contrast, Rothberg testified that he had several phone conversations with Mr. Prior, during which they discussed myriad topics, including: a will purportedly drafted in 1975; healing oils he introduced to Decedent; Rothberg's account of the "original incident"; a meeting with Decedent's cardiologist; Decedent's alleged abuse of Rothberg during his childhood; Rothberg's felony conviction for arson; his alleged discussions with Decedent about arson; a purported mafia investigation; and Rothberg's understanding that Decedent's domicile was in New York City. ( See N.T. Hearing, 5/20/11, at 210-25).
The parties place much emphasis on their conflicting accounts of what occurred during an episode involving Decedent's health they refer to as the "original incident." (Trial Ct. Op., at 18-20). Specifically, Appellee claims that, in August 1995, Rothberg tried to prevent her from taking Decedent to the hospital when he needed medical attention. ( See Appellee's Brief, at 7-8, 38). Rothberg disputes this allegation, maintaining that he did not refuse Decedent medical care and that the incident took place in April 1994, not 1995. ( See Rothberg's Brief, at 8-9).
The trial court, after considering the testimony, credited Mr. Prior's account of the initial consultations, and determined that disqualifying him from representing Appellee was not necessary to ensure that the parties received a fair proceeding. ( See Decree, 12/28/11, at 1); see also Vertical Res., Inc., supra at 1201-02; Pa.R.P.C. 1.18. After review, we agree, and conclude that the record fully supports the trial court's decision. The first issue does not merit relief.
With respect to Rothberg's remaining issues, after a thorough review of the record, in the light most favorable to Appellee, as required under our standard of review, see In re Estate of Nalaschi , supra at 11, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned opinion of the trial court, we conclude that they are meritless. The trial court properly disposes of the questions presented. ( See Trial Ct. Op., at 15, 19-21, 27-29, 31, 33-35) (finding: (1) court did not err in concluding that Decedent was domiciled in Philadelphia; (2) court did not abuse its discretion in crediting testimony of Appellee and Nellie Ingram regarding date of "original incident"; (3) evidence did not directly establish undue influence; (4) evidence did not establish presumption of undue influence; (5) evidence did not show 2002 Will was product of Decedent's insane delusion; (6) evidence did not demonstrate that will was procured through fraud; (7) evidence failed to establish that witness signature on 2002 Will was forged; (8) a witness's signature is not required for execution of a valid will in Pennsylvania, and evidence demonstrated Decedent's signature on will proper). Accordingly, we affirm the findings on the remaining issues on the basis of the trial court's opinion.
Appellee has filed an application to strike point six of Rothberg's reply brief, claiming that it is improper because it raises a new argument not addressed in his plenary brief, and nothing Appellee said in her brief opened the door to his argument. ( See Application to Strike, 5/05/15, at 4-5). We agree, and hereby grant Appellee's application. See Pa.R.A.P. 2113(a), note. --------
Decree affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
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