Estate of Richard L. Robinson ( 2018 )

J-A22042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF RICHARD L. ROBINSON IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: RICHARD AND JANET
GOLDBACH
No. 176 EDA 2017
Appeal from the Decree December 8, 2016
in the Court of Common Pleas of Monroe County
Orphans’ Court at No.: 164 OC 2011
ESTATE OF RICHARD L. ROBINSON IN THE SUPERIOR COURT
OF
PENNSYLVANIA
APPEAL OF: THE ESTATE OF RICHARD
L. ROBINSON
No. 206 EDA 2017
Appeal from the Decree December 8, 2016
in the Court of Common Pleas of Monroe County
Orphans’ Court at Nos.: 164 OC 2011
224 OC 2013
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 06, 2018
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A22042-17
In these consolidated cross-appeals, Appellant, the Estate of Richard L.
Robinson (“the Estate”), and Appellee/Cross-Appellants, Richard and Janet
Goldbach (“the Goldbachs”), appeal from the decree entered on December 8,
2016, following the orphans’ court’s decision partially in favor of the Estate
and partially in favor of the Goldbachs in these actions below for breach of
fiduciary responsibility and for an accounting. For the reasons discussed
below, we affirm in part, reverse in part, and remand.
We take the underlying facts and procedural history in this matter from
the orphans’ court’s December 8, 2016 opinion and our review of the certified
record.
These matters come before the [orphans’ c]ourt on two
separate docket numbers involving the Estate of Richard L.
Robinson. The circumstances which led to the current matters are
extensive and unfortunate. Barbara and Richard Robinson
(hereinafter “[d]ecedent”)[1] were a married couple residing in
Monroe County, PA. Barbara and the [d]ecedent lived in a
Canadensis home called “Nearbrook” where they raised the
[d]ecedent’s six sons from his first marriage. Prior to her
marriage, Barbara had attended college, and at that time
introduced her friend, Janet Clinton to Richard Goldbach on a
double date. Janet and Richard later married in 1960 and are the
[r]espondents in these actions. The Robinsons and [Janet]
Goldbach appear to have lost contact with one another until the
Goldbachs attended a college reunion at Skytop Lodge in 1983,
after which they stopped to visit the Robinsons in nearby
Canadensis. The Goldbachs then continued to visit the Robinsons
several times over the years.
In 2003, Richard Goldbach leased an automobile for Barbara
to use after noticing her car was unreliable. He did this in part
out of gratitude to Barbara for introducing him to his wife and
____________________________________________
1 We use the term “decedent” to refer solely to Richard Robinson.
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because he had enjoyed a financially successful career. In
October 2007, Barbara visited the Goldbachs for a week in
London, England. From that point on, Barbara and Richard began
an email correspondence which would become the foundation for
the matters [] before the [orphans’ c]ourt.
While visiting the Goldbachs in London, Barbara had
expressed despair over the [d]ecedent’s health and the couple’s
financial situation. The Robinsons had taken out a reverse
mortgage on the Nearbrook property and were unsure how long
the money would last. The [d]ecedent was suffering from
dementia, leaving Barbara to handle the couple’s finances. She
had no experience doing this in the past. Barbara struggled with
the task of managing finances and needed help. During the
London trip Barbara informed Janet Goldbach that the Robinsons’
financial situation and [d]ecedent’s health were so dire that she
and the [d]ecedent were contemplating suicide. Upon learning
this from his wife, Richard Goldbach volunteered to help Barbara
with her financial situation, not only because of the threat of
suicide, but also because Barbara was responsible for introducing
him to his wife, for which he was forever in her debt.
Barbara then supplied Richard Goldbach with documents
relating to the Robinsons’ finances. It was apparent that the
Robinsons were living beyond their means, and unable to continue
to afford the continued maintenance of Nearbrook and the reverse
mortgage. Sometime in November 2007, Richard called Barbara
and offered to provide financial assistance to the Robinsons.
Richard leased a new vehicle for Barbara to use and sent her
money to help with the deficiency between the Robinsons’ income
and expenditures. A ten[-]year plan was developed in which the
Goldbachs would lend the Robinson[s] approximately $1,000 a
month in the hope they could remain at Nearbrook. Barbara also
had Richard contact another friend of hers, Reuben Taylor, for
additional support in developing a financial plan. Reuben Taylor
believed that the condition of Nearbrook would render it almost
impossible for the Robinsons to maintain it in the future. All
parties eventually agreed that the Robinsons’ continued
ownership of Nearbrook was not feasible.
Richard Goldbach suggested various options to Barbara that
included selling Nearbrook, but retaining a life interest to rent a
portion of the property; selling Nearbrook and renting somewhere
else; selling Nearbrook and moving closer to the Goldbachs in
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Virginia. Another option was then offered to Barbara in which the
Goldbachs would purchase a home for the Robinsons to live in
rent[-]free, Nearbrook would be sold, and the proceeds of the sale
would be signed over to Richard Goldbach to hold and manage for
the Robinsons’ expenses not covered by the housing offer. This
was the option eventually pursued by the parties. Janet Goldbach
then purchased a condo at Labar Village in Stroudsburg,
Pennsylvania for the Robinsons to live in on May 4, 2009. The
Goldbachs paid a purchase price of $167,000, together with
closing costs of $5,498.75. Nearbrook was later sold on May 22,
2009, netting $157,764.39 for the Robinsons after payment of
closing expenses and the reverse mortgage. This money was
signed over to Richard Goldbach and deposited into his and Janet’s
bank account at Farmer’s Bank in Virginia. Until Nearbrook was
sold, the Goldbachs continued to send Barbara money every
month as agreed to in 2007.
After the sale of Nearbrook the proceeds were given to the
Goldbachs to maintain and use for the benefit of the Robinsons.
In emails exchanged between the parties, Barbara referred to the
money as belonging to Richard Goldbach. Other evidence
indicated Barbara could take back the remainder of the Nearbrook
proceeds at any time, but the Goldbachs would withhold further
guidance or financial help. The amount of money that remained
from the Nearbrook proceeds following the [d]ecedent’s death and
the way in which it was invested remains in dispute. Emails
between the parties indicate [that] between $142,000 and
$154,000 existed at various times prior to the [d]ecedent’s death.
Richard Goldbach testified that in his contact with Barbara he
inflated the actual amount remaining in order to alleviate some of
Barbara’s anxiety about running out of money. There was also
testimony that the Nearbrook money was to be invested at a 3%
return, but was instead returning less than 1% in the Goldbachs’
account.
On June 25, 2011, Barbara Robinson shot her husband and
took her own life at the home in Labar Village. [Richard Robinson]
survived his wife by one day before succumbing to his injuries.
Although there was some testimony that wills for Barbara and
[Richard Robinson] had been drawn up, or at least contemplated
by the Robinsons, no wills have been presented for probate.
Decedent’s son Bradley Robinson (hereinafter “[p]etitioner”) was
issued [l]etters of [a]dministration by the Monroe County Register
of Wills on August 17, 2011. The heirs of the Estate are the
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[d]ecedent’s five surviving sons (one son having died two (2)
years prior to the [d]ecedent).
The Estate hired a computer expert to retrieve and print all
emails between Richard Goldbach/Rueben Taylor/Barbara
Robinson. These emails were delivered to [p]etitioner’s counsel
on August 18, 2011. The Estate was aware that the Nearbrook
proceeds were endorsed over to Richard Goldbach upon review of
these emails in August 2011. On November 10, 2011, the
[d]ecedent’s Estate filed a [p]etition to [c]ompel [a]ccounting of
the funds which were being held by the Goldbachs []. This matter
[wa]s docketed at 164 OC 2011. The Goldbachs, through counsel,
sent supporting documentation of the accounting entries to
[p]etitioner’s counsel on November 22, 2011. A verified
accounting was later filed by the [Goldbachs] on October 29,
2012. A breach of fiduciary duty claim was filed on December 27,
2013, and is docketed at 224 OC 2013. [The orphans’ court]
note[s] the parties waived issues related to the Deadman’s Act,
and all Exhibits were admitted without objection to the Act or
hearsay issues.
(Orphans’ Court Opinion, 12/08/16, at 1-5).
Hearings on the matter took place on December 16, 2015, February 16,
2016, May 13, 2016, and July 20, 2016. On December 8, 2016, the orphans’
court issued an opinion and decree. It held that the statute of limitations
barred the Estate’s breach of fiduciary duty claim and, nevertheless, the
Estate had not met its burden of proving such a breach. (Decree, 12/08/16,
at 1). Further, it granted, in part, the Estate’s objection to the accounting and
awarded it $90,689.65 from the sale of Nearbrook proceeds. (See id.). Both
parties filed timely notices of appeal.2
____________________________________________
2All parties timely complied with the requirements of Pennsylvania Rule of
Appellate Procedure 1925. See Pa.R.A.P. 1925(b). The orphans’ court filed
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On appeal, the Estate raises the following eight questions:
[A.] Did the [o]rphan[s’ c]ourt err in concluding that the claim of
breach of fiduciary duty was barred by the statute of
limitations, a finding not supported by the facts or law?
[B.] Did the [o]rphan[s’ c]ourt err in concluding there was no
harm proved by breach of fiduciary duty shown, because the
[c]ourt made the Estate “whole” on the accounting side of
the case, a finding not supported by the facts or law?
[C.] Did the [o]rphan[s’ c]ourt err by not finding that [the
Goldbachs’] filing of an accounting wherein they claimed
monies were due to them, constituted harm as a result of
breach of fiduciary duty regardless of the [c]ourt’s holding
on the accounting side of the case?
[D.] Did the [o]rphan[s’ c]ourt err in not finding that the Estate
suffered damage/loss (court costs, filing fees, legal fees,
financial damages) as a result of the breach of fiduciary duty
proved?[]
[E.] Did the [o]rphan[s’ c]ourt err in its conclusion that the
monies given to the Robinsons by the Goldbachs from
November 2007 to May 2009 (prior to the sale of their
home) were loans and not gifts?
[F.] Did the [o]rphan[s’ c]ourt err by citing only [d]ecedent’s
hearsay testimony (repeated by [Appellee Richard]
Goldbach), to support its conclusion that Barbara Robinson
agreed to repay monies advanced to her circa 2007?
[G.] Did the [o]rphan[s’ c]ourt err on page [fifteen] of its opinion
stating with improper citation, that there “. . .was testimony
that Barbara Robinson did not want any financial harm to
come to Janet Goldbach. . .” where there was no such
testimony or document, but only a self-serving hearsay
____________________________________________
a statement finding that it had adequately addressed all issues raised in the
Rule 1925(b) statements in its December 8, 2016 opinion. See Pa.R.A.P.
1925(a).
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statement made by [Appellee Richard] Goldbach about what
[d]ecedent said to him?
[H.] Did the [o]rphan[s’ c]ourt err in giving too much weight to
Exhibit 63 which [the Goldbachs] referred to as the
“foundation of the whole transaction” when this document
was the only exhibit containing no proof on its face that it
was communicated to anyone and was not responded to?
(The Estate’s Brief, at 2-3).3
On cross-appeal, the Goldbachs raise the following five questions:
A. Did Barbara Robinson’s agreement by acquiescence
not to hurt Janet Goldbach, as evidenced by her acceptance of
financial support in 2007, extend to (a) her agreement to accept
a rent-free tenancy in a property Janet Goldbach purchased and
(b) the losses Janet Goldbach suffered on the sale of that property
after Barbara Robinson’s suicide?
B. Did the parties discus[s] the plan to sell Nearbrook in
2007?
C. Did [the Goldbachs] set forth case law in support of
their defense that any claim for repayment of the Nearbrook
____________________________________________
3 Despite raising eight questions in its statement of the questions involved,
The Estate only includes six issues in its argument, contrary to our rules of
appellate procedure. (See the Estate’s Brief, at 12–30); see also Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued[.]”). Specifically, in the argument section, Appellant
omit questions C and D as expressed in the statement of the questions
involved, stating that it will address issues B, C, and D together. (See the
Estate’s Brief, at 2 n.1, 22). Thus, there is no question C in the argument
section, and what are labeled as questions E and F in the statement of the
questions involved are questions D and E in the argument section. (See id.
at 2-3, 22, 26). The argument section does not include a question F and
concludes with questions G and H, which is as they are stated in the statement
of questions involved. (See id. at 3, 27, 29). Nonetheless, despite the
difficulties this has caused, we will address the issues. See Donahue v. Fed.
Express Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
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proceeds is barred by the doctrine of [a]greement by
[a]cquiescence?
D. Was there substantial evidence to justify rejecting
unrebutted testimony and Barbara Robinson’s express written
acknowledgement that Nearbrook proceeds were turned over to
[Appellee] Richard Goldbach unconditionally?
E. Do the doctrines of promissory estoppel or unjust
enrichment apply where Barbara Robinson accepted Janet
Goldbach’s offer to buy the LaBar Village property with the
expectation she would live in there until her mid-nineties and the
evidence shows that at the time they moved into LaBar Village,
the Robinsons had devised a joint-suicide plan which they carried
out only two years later causing substantial economic loss to the
[Goldbachs ?]
(The Goldbachs’ Brief, at 2-3).4
Both parties appeal from the decree of the orphans’ court. Our scope
and standard of review are settled.
Our standard of review of the findings of an Orphans’ Court
is deferential.
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.
____________________________________________
4 Similarly, to the Estate, the Goldbachs’ argument section does not match
their statement of the questions involved. (See the Goldbachs’ Brief, at 2-3;
24–36)/; see also Pa.R.A.P. 2119(a). Again, despite the difficulties caused,
we will address their issues. See Donahue, supra at 241 n.3.
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The Orphans’ Court decision will not be reversed unless
there has been an abuse of discretion or a fundamental error in
applying the correct principles of law.
This Court’s standard of review of questions of law is de
novo, and the scope of review is plenary, as we may review the
entire record in making our determination. When we review
questions of law, our standard of review is limited to determining
whether the trial court committed an error of law.
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145
A.3d 166 (Pa. 2016) (citations and quotation marks omitted).
The Estate first claims that the orphans’ court erred in finding that the
statute of limitations barred its breach of fiduciary duty claim. (See the
Estate’s Brief, at 12-17). We disagree.
The statute of limitations for a breach of fiduciary duty claim is two
years. See 42 Pa.C.S.A. § 5524(3) and (7). In discussing statutes of
limitations, this Court has specifically noted our policy that favors “the strict
application of statutes of limitation.” Glenbrook Leasing Co. v. Beausang,
839 A.2d 437, 441 (Pa. Super. 2003), affirmed, 881 A.2d 1266 (Pa. 2005)
(citation omitted). Our Supreme Court has stated:
As a matter of general rule, a party asserting a cause of
action is under a duty to use all reasonable diligence to be properly
informed of the facts and circumstances upon which a potential
right of recovery is based and to institute suit within the prescribed
statutory period. Thus, the statute of limitations begins to run as
soon as the right to institute and maintain a suit arises; lack of
knowledge, mistake or misunderstanding do not toll the running
of the statute of limitations, even though a person may not
discover his injury until it is too late to take advantage of the
appropriate remedy, this is incident to a law arbitrarily making
legal remedies contingent on mere lapse of time. Once the
prescribed statutory period has expired, the party is barred from
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bringing suit unless it is established that an exception to the
general rule applies which acts to toll the running of the statute.
The “discovery rule” is such an exception, and arises from
the inability of the injured, despite the exercise of due diligence,
to know of the injury or its cause. Thus, in a case of subsurface
injury in which, unknown to the plaintiff, the defendant removes
coal from his land via access originating on the defendant’s land,
the inability of the plaintiff, despite the exercise of diligence, to
know of the trespass, tolls the running of the statute, for no
amount of vigilance will enable him to detect the approach of a
trespasser who may be working his way through the coal seams
underlying adjoining lands, and until such time as the plaintiff
discovers, or reasonably should have discovered, the trespass, the
running of the statute is tolled. Likewise, in a case of medical
malpractice involving the failure of a surgeon to remove an
implement of surgery, it is the inability of the plaintiff to ascertain
the presence of the offending implement which prevents the
commencement of the running of the statute, for [c]ertainly he
could not open his abdomen like a door and look in; certainly he
would need to have medical advice and counsel. The salient point
giving rise to the equitable application of the exception of the
discovery rule is the inability, despite the exercise of diligence by
the plaintiff, to know of the injury. A court presented with an
assertion of applicability of the “discovery rule” must, before
applying the exception of the rule, address the ability of the
damaged party, exercising reasonable diligence, to ascertain the
fact of a cause of action.
Pocono Int’l. Raceway, Inc. v. Pocono Products, Inc., 468 A.2d 468, 471
(Pa. 1983) (citations, emphasis, and quotation marks omitted).
In its December 8, 2016 opinion, the orphans’ court thoroughly and
correctly explained the basis of its finding that the statute of limitations barred
the Estate’s breach of fiduciary duty claim as follows.
The first issue before the [orphans’ c]ourt is whether or not
the Estate’s claim for a breach of fiduciary duty against the
[Goldbachs] is barred by the applicable statute of limitations. Just
after Bradley Robinson was appointed [a]dministrator, the Estate
began looking into the possibility that funds had been mishandled
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by the [Goldbachs]. On or about August 18, 2011, a computer
expert, John Conti, delivered to [the Estate’s] attorney copies of
emails from Barbara’s computer relating to the [Goldbachs]. (See
Petitioner’s Exhibit 8, Agreement of Bradley C. Robinson for
Retention of John Conti’s Services, 8/04/11 at 1; N.T. Hearing,
12/16/15, at 43-44). Bradley Robinson and his counsel read these
emails in August 2011. (See N.T. Hearing, 12/16/15, at 67-68,
103). [The Goldbachs] argue, that because of the contents of the
emails, it was at this point that the [Estate] should have been
aware that the funds from Nearbrook were held by the Goldbachs,
who stated they used it all to assist the Robinsons. A [p]etition
to [c]ompel [a]ccounting in this matter was then filed on
November 10, 2011. Attached to that accounting is a copy of the
check for the sale of Nearbrook which was made out to Richard
Goldbach. (See Petition to Compel Accounting, 11/10/11, Exhibit
A; N.T. Hearing, 12/16/15, at 111, 120). [Bradley Robinson]
admitted he knew the Nearbrook proceeds were deposited to the
Goldbachs’ Virginia bank account when the [p]etition for
[a]ccounting was filed in November, 2011. (See N.T. Hearing,
12/16/15, at 111-113). The [b]reach of [f]iduciary [d]uty [c]laim
was filed on December 27, 2013. [The Estate] argues that the
statute of limitations should not have begun running until [the
Goldbachs] filed their verified accounting with the [orphans’ c]ourt
on October 29, 201[2]. [The Estate] further argues that without
the accounting [it] was without knowledge that a fiduciary breach
had occurred that would warrant a separate petition. [The
Goldbachs] counter that there is no information in the [b]reach of
[f]iduciary [c]laim that was not already included in the [p]etition
for [a]ccounting, and therefore the grounds for a breach of
fiduciary claim had existed and were known at the time the
accounting was requested in November 2011.
Actions for [b]reach of [f]iduciary [d]uty are subject to a
two year statute of limitations under 42 Pa. C.S.A § 5524(7) which
specifically covers “any other action or proceeding to recover
damages for injury to person or property which is founded on
negligent, intentional, or otherwise tortious conduct or any other
action or proceeding sounding in trespass, including deceit or
fraud.” [See 42 Pa.C.S.A. § 5524(7).] The party bringing the
claim “is under a duty to use all reasonable diligence to be properly
informed of the facts and the circumstances . . . and to institute
suit within the prescribed period.” Pocono Int’l Raceway,
[supra at] 471 ) (citations omitted). Under normal
circumstances, the statute of limitations begins as soon as the
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right to bring and sustain a claim arises. See id. One exception
to this general procedure is the “discovery rule” when a party is
unable to know of an injury or its cause despite due diligence. Id.
“Mere mistake, misunderstanding or lack of knowledge is not
sufficient to toll the running of the statute.” Taylor v.
Tukanowicz, 435 A.2d 181, 183 (Pa. Super. 1981) [(citation and
quotation marks omitted)]. When the injury is not immediately
known, the statute of limitations will only begin to run when the
discovery of it is “reasonably possible.” Id.
[The Goldbachs] assert that the [Estate] was aware of the
basis for the breach of fiduciary claim by at least August 2011, if
not before the Robinsons’ deaths. [The Goldbachs] cite an email
from August 23, 2009[,] in which Barbara Robinson claimed that
her step-sons knew that the money from Nearbrook was given to
Richard Goldbach, and they “kn[e]w the whole story”.
(Respondent’s Exhibit 30, E-Mail from Barbara Robinson to
Richard Golbach, 8/23/09 at unnumbered page 1). [Bradley
Robinson] admitted the August 2009 email was written by Barbara
Robinson, but that she was “overwhelmed” at this period and that
his parents did not discuss finances with him or his siblings. (N.T.
Hearing, 12/16/15, at 45; see also id. at 45-46). [Bradley
Robinson] also claims to have not been aware of the transfer of
the Nearbrook proceeds to the [Goldbachs] until after the
[d]ecedent’s death. (See id. at 29). Based upon [Bradley
Robinson’s] testimony and the context and tone of other emails
written by Barbara Robinson it is believable that the Robinsons’
sons were unaware of their parents’ financial arrangements with
the Goldbachs until after their deaths. Other evidence and
credible testimony shows that the Robinsons did not appear
particularly close enough to any of the children to discuss financial
matters, and that the children did not assist their parents with
financial issues or act to alleviate their parents’ concerns. (The
exception being a payment by one son of $4,400 for an oil bill in
August 2007 on behalf of his parents which went unexplained at
time of hearing). Although [Bradley Robinson] lived at Nearbrook
for a short period of time prior to its sale, paid some rent and
cooked some meals for his parents, he was generally unaware of
his parents’ financial situation, was unable to provide assistance
if asked, and there was no evidence the Robinsons confided in
their sons. Therefore, we doubt [Bradley Robinson] knew prior to
the deaths of his parents.
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Next it must be determined if the statute of limitations
should have begun once the [Estate] either received the relevant
emails from Barbara’s computer in August 2011, or in November
2011[,] when [the Goldbachs’] attorney provided more detailed
information, or when the [Goldbachs] filed a verified accounting
in October 2012. By [Bradley Robinson’s] own admission, the
Estate’s attorney received copies of Barbara’s emails on August
18, 2011. (See N.T. Hearing, 12/16/15, at 44). [The Goldbachs]
argue that all of the information contained within the two petitions
in this matter were known to the Estate by August 2011 through
those emails. The only noticeable difference in the allegations
between the two petitions is that the [p]etition for [a]ccounting
claims the [Goldbachs] purchased the Labar Village property as a
tax write-off, while the [b]reach of [f]iduciary [d]uty claim asserts
that the Labar Village property was improperly purchased with
monies from the sale of Nearbrook. However, it was clear from
the evidence that the [Goldbachs] purchased the Labar Village
property with their own or borrowed monies, and not the
Nearbrook proceeds. In fact, Nearbrook was sold by the
Robinsons after the Labar Village property was purchased by the
Goldbachs.
[The Estate] then states that [it] was not aware of a possible
fiduciary breach until [the Goldbachs] filed their accounting.
However, Paragraph [fifteen] of the November 1[0], 2011
[p]etition for [a]ccounting alleges that the [Goldbachs] co-
mingled the Estate’s funds from the sale of Nearbrook by
depositing them in [the Goldbachs’] own bank account. (See
Petition to Compel Accounting, ¶ 15). Such action could constitute
a breach of fiduciary duty. Therefore, at the very least, [the
Estate] was aware of facts indicating a possible breach of fiduciary
duty as of November 1[0], 2011 when making this allegation. This
information was also available and readily apparent in several of
the email exchanges between Barbara and Richard Goldbach.
These emails were known to [the Estate] in August 2011. The
[Estate] also attached a copy of the check from the sale of
Nearbrook, which had been signed over to Richard Goldbach, as
Exhibit “A” to the [p]etition [to Compel a]ccounting. [Bradley
Robinson] admitted he was aware of these facts and of the deposit
to Richard and Janet Goldbach’s Virginia bank account prior to
filing the [p]etition in November 2011. (See N.T. Hearing,
12/16/15, at 111-13). . . . [T]he co-mingling of funds alone would
be grounds for a breach of fiduciary duty claim. Based upon this,
it was reasonably possible for the [Estate] to have discovered the
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grounds for a fiduciary breach claim beginning in August 2011 and
definitely by November 1[0], 2011 when the [p]etition for
[a]ccounting was filed. The actual [b]reach of [f]iduciary claim
was not filed until December 27, 2013, more than two years after
it was reasonable to discover the issue.
(Orphans’ Ct. Op., at 5-9) (citation formatting and record citation formatting
altered).
Our review of the record shows that the orphans’ court’s factual finding
that the Estate knew or should have discovered the grounds for a breach of
fiduciary responsibility claim by, at the latest, November 2011, is clearly
supported by the evidence. See Fiedler, supra at 1018. Moreover, we
discern no error of law in the orphans’ court declining to apply the discovery
rule beyond November 2011. See Crouse v. Cyclops Indus., 745 A.2d 606,
611 (Pa. 2000) (citation omitted) (explaining discovery rule only applies until
point that party knows or reasonably should know of injury). The Estate’s first
claim lacks merit.
In its second claim, the Estate argues that the orphans’ court “err[ed]
in concluding [that] there was no harm proved by breach of the fiduciary
duty[.]” (The Estate’s Brief, at 18) (unnecessary capitalization omitted).
However, because we have found that the orphans’ court did not err in holding
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that the statute of limitations barred the Estate’s breach of fiduciary
responsibility claim, we need not address this issue.5
In its fifth claim, the Estate claims that the orphans’ court erred “in its
conclusion that the monies given to [decedents] by fiduciary Goldbach from
Nov. 2007 to May 2009 were loans and not gifts[.]” (The Estate’s Brief, at
22) (unnecessary capitalization omitted); (see id. at 22-26). We disagree.
Initially, we note that, to the extent that the Estate is complaining that
the orphans’ court relied on evidence admitted in violation of the Deadman’s
Act and on hearsay evidence, (see the Estate’s Brief, at 23), it has waived the
claim. The orphans’ court specifically states in its decision that “the parties
waived issues related to the Deadman’s Act, and all Exhibits were admitted
without objection to the Act or hearsay issues.” (Orphans’ Ct. Op., at 5). The
record supports this statement and the Estate cannot now complain that the
trial court relied on exhibits that it agreed to admit. (See N.T. Hearing,
12/16/15, at 156-58; N.T. Hearing 5/13/16, at 41; N.T. Hearing 7/20/16, at
63); see also Pa.R.A.P. 302(a); Samuel-Bassett v. Kia Motors America,
Inc., 34 A.3d 1, 45-46 (Pa. 2011).
____________________________________________
5 The Estate’s third and fourth claims as delineated in the statement of
questions involved also concern the merits of its breach of fiduciary duty
claims. However, as discussed supra, the Estate discussed these together
with the second issues in its brief, thus we need not address them because of
our ruling on the statute of limitations issue.
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Moreover, our review of the record demonstrates that the orphans’
court’s holding that the monies in question were a loan, not a gift, (see
Orphans’ Ct. Op., at 15, 21), is well-supported by the evidence of record. The
record reflects that in late 2007, the Goldbachs offered to lend Barbara
Robinson funds to offset the difference between her income and expenses.
(See Respondents’ Exhibit 63, Letter from Richard Goldbach to Barbara
Robinson, 10/07/03, at unnumbered pages 1-2; N.T. Hearing, 5/13/16, at 40-
44, 54-55). The nature of the transaction was delineated in an e-mail sent by
Richard Goldbach to Barbara Robinson in response to her request. (See
Respondents’ Exhibit 5, E-Mail from Barbara Robinson to Richard Goldbach,
11/06/07, at unnumbered page 1; Respondents’ Exhibit 6, E-Mail from Richard
Goldbach to Barbara Robinson, 11/14/07, at unnumbered pages 1-3;
Respondents’ Exhibit 7, E-Mail Chain Between Barbara Robinson and Richard
Goldbach, 11/15/07, at unnumbered page 5; Respondents’ Exhibit 63,
supra). These letters and e-mails specifically state that the monies were
loans, mentions Barbara Robinson’s intent to keep this on a “business-like”
basis, and her wish not to be the cause of any financial harm to Janet
Goldbach. (Id.). Both Richard Goldbach and Reuben Taylor testified as to
their understanding of the events of 2007 and the trial court clearly credited
their testimony. (See Orphans’ Ct. Op., at 15-17, 21; N.T. Hearing, 5/13/16,
at 40-41, 54-55, 103).
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While the Estate points to several e-mails that it contends support its
contention that the monies were gifts not loans, (see the Estate’s Brief, at 24-
25), it fails to explain how these exhibits support its contentions. (See id. at
25-26). We have reviewed them and are unable to discern what statements
in these exhibits support the Estate’s contention that the monies sent to
Barbara Robinson in 2007 through 2009 were gifts, not a loan. We remind
the Estate that it is not this Court’s responsibility to comb through the record
seeking the factual underpinnings of its claim. See Commonwealth v.
Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) (“In a record
containing thousands of pages, this [C]ourt will not search every page to
substantiate a party’s incomplete argument.”). Thus, the factual finding of
the orphans’ court that the monies advanced between November 2007 and
May 2009 were loans, not gifts, is supported by the record and we see no
abuse of discretion in this finding. See Pocono Int’l. Raceway, supra at
471. The Estate’s fifth claim lacks merit.
In its sixth claim, the Estate contends that the orphans’ court erred by
only relying on hearsay testimony in concluding that Barbara Robinson agreed
to repay funds. (See the Estate’s Brief, at 26). However, as discussed above,
the Estate agreed to waive all objections to hearsay. (See N.T. Hearing,
12/16/15, at 156-58; N.T. Hearing, 7/20/16, at 63) Thus, it cannot complain
now that the orphans’ court erred in relying upon it. See Pa.R.A.P. 302(a);
Samuel-Bassett, supra at 45-46. The Estate’s sixth claim lacks merit.
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In its seventh claim, the Estate argues that the orphans’ court erred on
page fifteen of its opinion by incorrectly using “Id” in that portion of its
decision. (The Estate’s Brief, at 3; see also id. at 27-29). It further
complains that the trial court erred in stating that there was testimony that
Barbara Robinson did not want harm to come to Janet Goldbach when no such
testimony existed except for the self-serving testimony of Richard Goldbach.
(See id. at 27-29).
Initially, we note that the Estate has failed to point to any law that
supports an argument that this Court can overturn an orphans’ court decision
following a hearing because of alleged citation errors in its opinion. Moreover,
while Barbara Robinson, of course, could not testify as to her statements,
there was evidence of record that she did not want harm to come to Janet
Goldbach. (See Respondents’ Exhibit 63, supra; N.T. Hearing, 5/13/16, at
44). We again note that the Estate cannot now complain about the orphans’
court’s reliance on hearsay evidence when it agreed to its admission. Lastly,
as discussed above, the record amply demonstrates that the monies advanced
by the Goldbachs to Barbara Robinson between November 2007 and May 2009
were loans, not gifts. The Estate’s seventh claim lacks merit.
In its final claim, the Estate maintains that the orphans’ court gave too
much weight to Respondents’ Exhibit 63 in concluding that the advanced
monies were loans and not gifts. (See The Estate’s Brief, at 29-30). We find
the claim waived.
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In its brief, the Estate fails to cite to the objectionable portions of the
orphans’ court opinion. (See id.). Thus, it is not readily apparent to us to
what portions of the opinion the Estate is objecting. This Court will not act as
counsel and will not develop arguments on behalf of an appellant. See
Bombar v. West Am. Ins. Co., 932 A.2d 78, 94 (Pa. Super. 2007). When
deficiencies in a brief hinder our ability to conduct meaningful appellate
review, we can dismiss the appeal entirely or find certain issues to be waived.
See Pa.R.A.P. 2101. Because the Estate has failed to develop this issue, it
waived it.6 See id.; see also Bombar, supra at 94; Jones v. Jones, 878
A.2d 86, 90 (Pa. Super. 2005).
In their first two issues, the Goldbachs claim that Barbara Robinson’s
agreement by acquiescence to the terms of their financial dealings estops the
Estate from seeking return of the monies. (See The Goldbachs’ Brief, at 24-
32). We agree.
Our Supreme Court described the doctrine of agreement by
acquiescence thusly:
____________________________________________
6 In any event, our review of the record demonstrates that the trial court twice
cites to Respondents’ Exhibit 63 in discussions of rulings that ultimately
favored the Estate. (See Orphans’ Ct. Op., at 16-17, 20). The only other
mention of Respondents’ Exhibit 63 is in a string cite to various exhibits and
notes of testimony relied upon by the trial court in concluding that the monies
advanced between 2007 and 2009 were loans, not gifts. (See id. at 21).
There is nothing in this citation that demonstrates that the trial court placed
undue weight on Respondents’ Exhibit 63 or even placed any particular weight
on it as opposed to the others pieces of evidence noted in the citation. Thus,
even if the Estate had not waived the claim, it lacks merit.
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An estoppel may be raised by acquiescence, where a party aware
of his own rights sees the other party acting upon a mistaken
notion of his rights. The rule is well recognized that when a party
with full knowledge or with sufficient notice or means of
knowledge of his rights and of all the material facts, remains
inactive for a considerable time or abstains from impeaching the
transaction, so that the other party is induced to suppose that it
is recognized, this is acquiescence, and the transaction, although
originally impeachable, becomes unimpeachable. . . . [I]t was
stated by this [C]ourt: It would be most unreasonable to permit
an employee to receive his pay without objection or dissent, from
time to time at a fixed rate, for a considerable period, and
thereafter present a claim for additional compensation. If the
amount received was not satisfactory the employees should have
quit work, or raised an objection then and there; so that the
department would have been put upon notice, and would have
exercised its option of meeting the demand, or finding some one
else to do the work for the rate of pay deemed sufficient. We can
only look upon the continuance in employment, as an expression
of satisfaction by the workmen with the amount of the
compensation; and the receipt of payments every two weeks
throughout the whole period, is to be deemed an estoppel against
the assertion of any claim for additional compensation at this time.
Under the circumstances, continuance in the employment of the
department from day to day can only be regarded as acquiescence
in the rate of wages fixed by the department.
In re Kennedy’s Estate, 183 A. 798, 801 (Pa. 1936) (citations and quotation
marks omitted).
Here, the Goldbachs contend that the orphans’ court erred in not finding
that Barbara Robinson “accepted a lifelong rent-free and expense-free tenancy
in a home purchased by [them] in exchange for the proceeds of the Nearbrook
sale.” (The Goldbachs’ Brief, at 24). They further argue that the orphans’
court mistakenly found that the 2007 through 2009 loans were distinct
agreements temporally separated, a conclusion that the orphans’ court used
to support its finding that Barbara Robinson did not have any concerns about
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future financial harm to Janet Goldbach regarding home purchase in 2009.
(See id. at 25-31). Again, we agree.
Our review of the relevant portions of the record demonstrates that
these were not two separate transactions but rather a single series of
negotiations. Namely, while the parties initially believed that the Robinsons
could remain in Nearbrook, they almost immediately concluded that this was
not possible; the delay in the Robinsons’ departure was caused not by a
change of plans but rather by difficulties in selling Nearbrook. Specifically, we
note that in the initial 2007 e-mail, Richard Goldbach believed that Barbara
Robinson could remain in Nearbrook if her income was bolstered by loans (in
response to Barbara Robinson’s wish that things be conducted on a business-
like basis and Janet Goldbach not be harmed) from Janet Goldbach, but he
changed his mind within approximately one week. (See Respondents’ Exhibit
63, supra at unnumbered pages 1-2; Respondents’ Exhibit 6, supra at
unnumbered page 1 ¶¶ 2-4 (discussing need to sell Nearbrook as soon as
possible and difficulties in so doing)). The November 14, 2007 e-mail
specifically noted that one possibility for the future was that the Goldbachs,
specifically Janet Goldbach, would purchase a retirement home for the
Robinsons to live in rent-free during their lifetimes. (See Respondents’ Exhibit
6, supra at unnumbered page 2 ¶ 7). In his testimony, Reuben Taylor
confirmed both that Barbara Robinson did not want Janet Goldbach to be
harmed financially and that, while Richard Goldbach initially wanted the
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Robinsons to stay in Nearbrook, he quickly realized that this was not feasible.
(See N.T. Hearing, 7/20/16, at 89-92; see also N.T. Hearing, 5/13/16, at 55-
58). Thus, the orphans’ court was incorrect in its conclusion that, in 2007,
the parties were not discussing the sale of Nearbrook. (See Orphans’ Ct. Op.,
at 15-16).
Further, the record reflects that Barbara Robinson willingly accepted all
financial assistance offered by the Goldbachs. (See N.T. Hearing, 5/13/16, at
73-74; see also N.T. Hearing, 7/20/16, at 86). In accordance with their
agreement, the Goldbachs loaned Barbara Robinson $1,000.00 per month
between November 2007 and the sale of Nearbrook in May 2009. (See e.g.,
Respondents’ Exhibit 14, E-Mail 1/27/08, at unnumbered page 1; see also
N.T. Hearing, 5/13/16, at 71-73). In furtherance of the agreement, she
agreed to turn over unconditionally the proceeds from the sale of Nearbrook
to Richard Goldbach in return for lifetime rent-free and expense-free tenancy
at Labar Village, in the condominium owned by Janet Goldbach, with all
remaining bills to be paid by Richard Goldbach from the sale proceeds. (See
Respondents’ Exhibit 24, E-Mail from Richard Goldbach to Barbara Robinson,
4/04/09, at unnumbered pages 1-2 (discussing: (1) how to allocate various
expenses between parties; (2) that Barbara Robinson would turn over
proceeds from Nearbrook sale unconditionally to Richard Goldbach; (3)
monies would be placed in Goldbachs’ bank account; (4) monies to be used
to pay all Barbara Robinson’s remaining bills; (5) iterating that Barbara
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Robinson needed to stop giving away money; and (6) if she requested,
Goldbachs would return remaining monies, but would no longer pay her bills
and manage her finances); see also N.T. Hearing, 5/13/16, at 81-92).
Barbara Robinson confirmed her acceptance of this proposal by signing
over the Nearbrook proceeds to Richard Goldbach. (See Petition to Compel
Accounting, supra at Exhibit A; N.T. Hearing, 5/13/16, at 92). Less than five
months later, Barbara Robinson expressed discomfort with the situation,
acknowledging that the money belonged to Richard Goldbach, but feeling
uncomfortable with having to ask him for money. (See Respondents’ Exhibit
29, E-Mail Chain from Richard Goldbach to Barbara Robinson, 7/18/09, at
unnumbered page 2). Richard Goldbach again reminded Barbara Robinson
that if she did not agree with his method of handling her finances, he would
return the monies. (See id. at unnumbered page 1; see also N.T. Hearing,
5/13/16, at 93-95). There is no evidence of record that Barbara Robinson
ever sought return of the monies prior to her death.
In Kennedy’s Estate, supra, a father and his two sons entered into a
business. See Kennedy’s Estate, supra at 799. The business arrangement
lasted for many years without objection from the sons. See id. at 799-800.
After the father’s death, the sons filed a claim against the estate for a
reimbursement of losses incurred by the business, which had been originally
charged against them on the basis of the business agreement. See id. On
appeal, our Supreme Court declined to address the merits of the underlying
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dispute of whether the business agreement created a partnership or if the
sons were profit-sharing employees of their father. See id. at 800. Instead,
the Court held that the sons were obligated to raise their objections close in
time to when the losses were first assessed against them, and by waiting to
do so, they were precluded from raising the claim against the estate. See id.
at 801. Specifically, the Court stated, “[t]he time to have raised the question
now before us was during the lifetime of [the father], not after his death.” Id.
Here, as discussed in detail above, beginning in 2007 and ending in
2011, Barbara Robinson agreed to an on-going financial arrangement that
would both protect Janet Goldbach from any future financial difficulties, by
allowing the Labar Village property to revert to her after the Robinsons’ death,
and assist Barbara Robinson. She accepted loans of $1,000.00 a month from
November 2007 through May 2009. In late 2007, she agreed to place
Nearbrook on the market; she subsequently agreed to turn over the proceeds
from that sale unconditionally to Richard Goldbach. In return for these
monies, the Goldbachs agreed to pay for the Labar Village residence and its
related expenses, and to pay Barbara Robinson’s bills for life.7 As discussed
____________________________________________
7 It is evident that the proceeds of approximately $157,000.00 would only
have lasted for a few years, particularly given that Barbara Robinson was
obligated to repay the approximately $23,000.00 loaned to her by the
Goldbachs. Clearly, at some point, Richard Goldbach would have needed to
pay her bills out of his own pocket. Thus, it is only because of Barbara
Robinson’s decision to kill her husband and commit suicide in 2011, that there
are any remaining funds.
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above, Barbara Robinson knew that she could seek return of the remaining
funds at any time, but would then have to manage her own finances and pay
her own bills. (See Respondents’ Exhibit 24, E-Mail from Richard Goldbach to
Barbara Robinson, 4/04/09, at unnumbered pages 1-2). She chose not to
repudiate the agreement.
Thus, the relevant issue was not the underlying merits of whether the
monies advanced with respect to the Labar Village residence was a loan or a
gift, but whether the Estate is now barred from objecting because Barbara
Robinson acquiesced to the financial arrangement set by Richard Goldbach.
See Kennedy’s Estate, supra at 800-01. We find that the trial court made
a fundamental error of law in not holding that by not objecting during her
lifetime, Barbara Robinson forfeited any claim on behalf of the Estate for the
proceeds of Nearbrook. See Pocono Int’l Raceway, supra at 471;
Kennedy’s Estate, supra at 801; see also Commonwealth ex. rel. City
of Philadelphia v. Public Serv. Mut. Ins. Co., 247 A.2d 636, 640 (Pa. 1968)
(relying on Kennedy’s Estate for proposition that appellants were not
entitled to return of forfeited bail monies where they were aware of facts
underlying forfeiture and paid judgments without protest, thus they could not
later seek return of funds).
Because we find that Barbara Robinson’s agreement by acquiescence
estopped the Estate from seeking return of the remaining proceeds from the
sale of the house after her death, we need not address the Goldbachs’
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remaining claims. Accordingly, for the reasons discussed above, we affirm
the decree in part, reverse in part, and remand for entry of a decree consistent
with this opinion.
Decree affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/18
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