Est. of Louis DiCesare, Appeal of: DiCesare, B. ( 2022 )

J-S19034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF LOUIS : IN THE SUPERIOR COURT OF
DICESARE, DECEASED : PENNSYLVANIA
:
:
APPEAL OF: BRYAN DICESARE :
:
:
:
: No. 2310 EDA 2021
Appeal from the Decree Entered October 5, 2021
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2013-0751
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 11, 2022
Appellant Bryan K. DiCesare appeals pro se from the Decree entered in
the Court of Common Pleas of Lehigh County on October 5, 2021, which, inter
alia, dismissed Appellant’s “Objections to the First and Final Formal Account
of David M. Roth, Esquire, Administrator D.B.N.C.T.A.” filed on November 20,
2019. Because Appellant’s appellate brief is substantially deficient, we quash
this appeal.
In its Pa.R.A.P. 1925(a) Statement, the orphans’ court indicated that it
had set forth the reasons for its dismissal of Appellant’s Objections in its
Adjudication filed on October 5, 2021, to which the Decree is attached.
Although the facts are not relevant to our disposition, to place the instant
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S19034-22
appeal in context, we reproduce the orphans’ court’s recitation of the facts
and procedural history herein as follows:
The First And Final Account of David M. Roth, Esquire,
Administrator, D.B.N.C.T.A. of the Estate of Louis A. Dicesare,
Deceased (hereafter, “Account”), was presented to the [c]ourt for
audit, confirmation and adjudication on November 15, 2019.
Proof of notice thereof to all parties legally interested in said estate
appears of record.
The Account reflects a principal balance of $116,959.01;
disbursements during administration of $88,367.03; and a
balance in hand of $28,591.98 comprised of cash and tangible
personalty.
The Petition for Adjudication/Statement of Proposed
Distribution seeks the [c]ourt’s approval of: payment of
$18,838.93, representing compensation for guardian and/pr
1
guardian ad litem services rendered to Linda A. DiCesare 2,
beneficiary (hereafter “Linda”); the administration of certain
tangible personalty3 as probate property, and whether the
outstanding Linda DiCesare estate administration expenses and
estate recovery claim can be paid directly from her distributive
share in this estate.
On November 20, 2019, Bryan K. DiCesare (hereafter,
“Bryan”) filed Objections to the First And Final Account Of David
M. Roth, Esquire, Administrator D.B.N.CT.A., (hereafter
“Objections”). The prolix and repetitive 9 page Objections, are not
consecutively numbered, and are directed to: the manner and sale
of the decedent's real property, known as and located at 1526
Paxford Road, Allentown, Pennsylvania (hereafter “Property”); the
sale and continued possession of certain tangible personalty; and
the proposed payment of the administration expenses of Linda's
guardianship and probate estate from the Louis DiCesare Estate.
Bryan, who represented himself at the May 18, 2021 hearing upon
the Objections, introduced no documentary evidence and
presented no testimony other than his own statement. While
Objector’s
...regrettable failure to conform to the rules of procedure
and the law is most likely due to ...[his)... status as a
pro se litigant, pro se litigants are not entitled to any
advantage because of their lack of legal training. (Trffen
v. Jansssen, 626 A.2.d 571, 573 (Pa.Super. 1993); see
-2-
J-S19034-22
also First Union Mortg. Corp. v. Frempong, 744 A.2d
327, 337 (Pa. Super. 1999) ("any layperson choosing to
represent himself in a legal proceeding must, to some
reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing.")
Fluellen Estate 9 Fiduc. Rep. 3d (O.C. Phila. 2019)
For the reasons set forth below, the Objections are denied.
The long and difficult history of this estate administration,
which is inextricably bound to the equally contentious
guardianship administration regarding Linda is well-documented4
and will not be repeated in great detail here. During the period
that he served as the personal representative of this Estate, as
well as the successor guardian of the person of his incapacitated
mother, and thereafter administrator of her probate estate, three
fiduciary positions from which he was removed for cause,5 Bryan
did not obtain a caregiver exemption regarding Linda's 80%
interest in the Property 6, and continued to reside there with his
family. Bryan’s failure to properly administer the Property was one
of the primary reasons for his removal as Executor of this Estate
on September 20, 2017. Thereafter, this [c]ourt found that the
Property was a probate asset of Louis DiCesare, directed the
Administrator d.b.n.c.t.a. to sell it “... in order to conclude the
estate administration and effectuate distribution” and charged
Bryan’s 20% interest in the Property $35,056.28.7 Bryan did not
appeal the May 25, 2018 Order.
By Order entered August 30, 2018, this [c]ourt: granted the
Administrator's Petition For Citation To Show Cause Why A
Decedent's Property Should Not Be Vacated filed July 20, 2018;
directed Bryan and his invitees to remove themselves and their
belongings from the Property by September 17, 2018; and ruled
that “... any tangible property left at 1526 Paxford Road,
Allentown, Pennsylvania shall be deemed property of the Estate
of Louis Dicesare, deceased subject to administration by David M.
Roth, Esquire, Administrator d.b.n.c.t.a.” By Order entered
September 25, 2018, the Motion Of Bryan Dicesare For Emergency
Stay Of August 30, 2018 Order Granting Petition To Vacate filed
September 24, 2018, (hereafter, “Emergency Motion”), was
denied with prejudice; the [c]ourt finding:
... counsel's hope that, within 30 days, an agreement
can be reached that will allow Dicesare to stay in the
Property so that its sale will not be necessary, to be
unfounded. The sale of the Property was ordered by our
-3-
J-S19034-22
May 25, 2018 Order, which Dicesare did not appeal. As
indicated in the August 30 Order, the Property cannot be
productively marketed while Dicesare and his invitees
continue to reside there and nothing in the Emergency
Motion convinces us otherwise. Furthermore, both the
long procedural history of this case and Dicesare’s
recently filed IFP petition, which states that he has been
unemployed since March 2018, has no current source of
income (other than contributions from his wife and
mother-in-law) and double-digit credit card and student
loan debt, strongly suggest that he is financially unable
to purchase the property. The August 30, 2018 Order
put an end to Dicesare’s consistent pattern of non-
cooperation, delay and disregard of [c]ourt Orders by
imposing a clear deadline to vacate the property
(September 17, 2018) and clearly stating the
consequences of failing to do so. (Removal by the
Sherrill of Lehigh County). The Emergency Motion fails
to persuade us that Dicesare will be in position to buy
the Property if given an additional thirty days to reside
there.
It was necessary for the Administrator to enlist the assistance
of the law enforcement to effectuate the removal of Bryan and his
family, first on September 25, 2018, the day after the denial of
the Emergency Motion at which time the deputies helped Bryan
and his family load tangible personalty into their vehicles. The
Administrator d.b.b.c.t.a. then changed the locks to the Property
but permitted Bryan, with his then counsel, to return to the
Property and remove additional items of tangible personalty.
Thereafter, on or about November 13, 2018, without the
knowledge or permission of the Administrator d.b.n.c.t.a., Bryan
broke into the Property, moved back in with his wife and her
mother and changed the locks. Upon discovering that Bryan had
reentered and was occupying the Property, the Administrator
d.b.n.c.t.a. again effectuated their removal, this time with the
assistance with the Salisbury Police Department. The tangible
personalty left at the Property by Bryan and his invitees was then
marshalled and liquidated by the Administrator d.b.n.c.t.a
pursuant to the August 30, 2018 Order. The guns, ammunition
and related equipment that were left at Property are currently
stored partially at Zettlemoyer Auction Company, (Exhibit F to the
Account) and are partially in the custody of the Salisbury Police
Department (Exhibit E to the Account).
-4-
J-S19034-22
On January 31, 2019, the Administrator provided notice to
Bryan of the auction sale of the Property on February 12, 2019.
On February 11, 2019, Bryan and his wife filed Chapter 13
Bankruptcy, assuming that doing so would operate as an
automatic stay of the scheduled auction sale of The Property. The
Property was sold at auction on February 12, 2019 for
$116,000.00. Bryan file a Motion For Contempt And Sanction For
Willful Violation of Automatic Stay (hereafter “Emergency Motion”)
in the Bankruptcy Court on February 25, 2019, thereby causing
the Administrator to retain bankruptcy counsel, at additional
expense to the estate. By Order dated March 19, 2019, the
Bankruptcy Court dismissed the Emergency Motion finding that
the automatic stay did not apply and that the Property and its
contents were probate assets of Louis DiCesare that could be sold
pursuant to this [c]ourt's May 25, 2018 Order. Settlement on the
Property occurred on June 20, 2019, and the Administrator
d.b.n.c.t.a. filed this final account of his administration in
September 2019.
Bryan's contention that the sale of the decedent's real and
personal property was improper, which is the basis for all of his
objections, is completely erroneous. As is clear from the forgoing
summary, the Administrator d.b.n.c.t.a. has, at all times, acted in
accordance with the law in general and this [c]ourt's orders in
particular, all while exhibiting extraordinary professionalism in the
face of the obstructive conduct of Bryan and his wife. It has been
the behavior of Bryan and his wife that caused this modest and
non-complex estate administration to remain open for eight years
and necessitated the appointment of others to fill fiduciary
positions because of Bryan’s inability or unwillingness to recognize
and properly perform those duties.
Because the charge imposed upon Bryan’s interest in the
Property is more than 20% of the proceeds derived from the sale
of the Property, the net proceeds from the sale of the Property are
distributable entirely to Linda. As a result of priority claims for
guardianship administration expenses and the claim of the
Department of Human Services, the Estate of Linda DiCesare is
insolvent. Accordingly, and upon consideration of the Motion filed
June 22, 2021 to File No. 2016-0204A by the Administrator d.b.n.
of the Estate of Linda Dicesare, deceased, we shall direct that: the
outstanding guardianship administration expenses, totaling
$18,838.93, and compensation to the Administrator d.b.n. of the
Estate of Linda DiCesare, be paid by the Administrator d.b.n.c.t.a.
from the balance in hand. In addition, our Decree will direct that
Administrator d.b.n.c.t.a. liquidate the weapons, ammunition and
-5-
J-S19034-22
related equipment listed on Exhibits E and F, preferably by bulk
sale to an authorized firearms dealer or collector and shall direct
the Salisbury Police Department to release the handguns, rifles
and knife that are described on Exhibit E to the Account, to the
Administrator d.b.n.c.t.a. or such person/entity as he shall direct.
Proceeds derived from the liquidation of the tangible personalty
shall be used to pay the storage costs of the weapons and/or
additional legal fees and administration expenses incurred by the
Administrator d.b.n.c.t.a. since the filing of the account, to the
extent that the Reserve stated in the Account is insufficient to do
so. Finally, any remaining balance shall be paid to the Department
of Human Services as payment in full of the Department of Human
Services’ claim against the Estate of Linda DiCesare, deceased.
___
1 See Statement of Legal Services for Helen Z. Stauffer, Esquire
in the amount of $6,825.00, Steven A. Litz, Esquire in the amount
of $3,343.93 and Shannon Piergallini Smith, Esquire in the
amount of $8,670.00.
2 Linda, surviving spouse of the decedent, was the specific devisee
of an 80% interest in the Property. Prior to her death on June 21,
2018, Linda had been adjudicated incapicated by Decree entered
May 24, 2016 upon the § 5511 petition filed by the residential care
facility in which she resided. (See, Order entered October 3, 2017
at n. 1). The guardianship administration was not a smooth one
due to the conduct of [Appellant] and his girlfriend then-wife (See,
Order entered October 3, 2017 at n. I, Order entered April 5, 2018
at n. ii) which, among other things, resulted in legal fees and
guardianship administration fees that have not yet been paid due
to insufficient assets.
3 The property, consisting mostly of firearms and ammunition
which are presently held by Salisbury Township Police and
Zettlemoyer Auction, was left in the decedent's home after Bryan
and his family were escorted from the home on November 13,
2018, subsequent to their breaking and entering the Property.
4 See Orders entered: September 20, 2017, May 25, 2018, August
30, 2018; Order entered October 3, 2017 at n. 1, and Order
entered April 5, 2018 to File No. 2016-0204 (In re: Linda DiCesare
an incapacitated person) and, Order entered on May 6, 2019, to
File No 2016-0204A (in re: Linda DiCesare, deceased).
-6-
J-S19034-22
5 Order entered September 20, 2017 in File No 2013-0751
(removal as Executor of the estate of Louis DiCesare); Order
entered October 3, 2017 in File No 2016-0204 (removal as
Successor Guardian of the Person of Linda DiCesare, an
incapacitated person); and Order entered May 6, 2019 in File No
2016-0204A (removal as Administrator of the Estate of Linda
DiCesare, deceased).
6See, Order entered May 25, 2018 at n.6, and Order entered
August 30, 2018 at n.2
7 See, Order entered May 25, 2018 at p. 5: Bryan Dicesare’s 20%
interest in the net proceeds from the sale of the Property is
charged with $ 35,056.28 representing the aggregate amount of
a lump sum payment paid in March 2016 ($26,699.00) as well as
monthly payments paid during the period March 2, 2016 through
January 3, 2017 s of [sic] ... Bethlehem Steel widow's pension
benefits due to Linda Dicesare that Bryan Dicesare received but
did not timely report to the medical assistance8 office or to the
subsequently appointed Guardian of the Estate of Linda Dicesare
and for which he has failed to account. Said $35,035.25 shall be
added to the distributive share of Linda Dicesare, an incapacitated
person.
8The estate holds a reserve in the amount of $15,000.00 for
attorney’s fees.
Orphans’ Court Adjudication, filed 10/5/21, at 1-7.
On November 2, 2021, Appellant filed a timely notice of appeal. The
orphans’ court did not order Appellant to file a concise statement of the
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
did not file a concise statement. The orphans’ court filed its Pa.R.A.P. 1925(a)
Statement on November 5, 2021.
While on page two of his appellate brief Appellant indicates a statement
of the questions involved may be found on page eight, no such statement
exists. To the extent the captions within the “Argument” portion of Appellant’s
-7-
J-S19034-22
brief may be interpreted as questions presented for appellate review, they are
as follows:
1. Did the lower court have jurisdiction after adopting and
approving the May 1, 2017, settlement agreement (stipulation)
which became a final order[?]
2. Did the lower court have authority to decide title of personal
property of a third party that has no connection with the estate of
Louis Dicesare (file No, 2013-0751)[?]
3. Did the lower court violate the 2nd Amendment rights of
Appellant the right to keep and Bear Arms[?]
4. Did the lower court error by not dismissing the March 13,
2018, petition for being barred by the doctrine of estoppel and res
judicata[?]
Brief for Appellant at 3-4.
At the outset, we recognize it is axiomatic that “appellate briefs and
reproduced records must materially conform to the requirements of the
Pennsylvania Rules of Appellate Procedure. This Court may quash or dismiss
an appeal if the appellant fails to conform to the requirements set forth in the
Pennsylvania Rules of Appellate Procedure.” Commonwealth v. Adams,
882 A.2d 496, 497 (Pa.Super. 2005) (citation omitted).
Our Pennsylvania Rules of Appellate Procedure and our case law lay out
the well-established requirements for preserving a claim for appellate review.
This Court will address only those issues properly presented and developed in
an appellant’s brief as required by our rules of appellate procedure, Pa.R.A.P.
2101–2119. “Appellate arguments which fail to adhere to these rules may be
-8-
J-S19034-22
considered waived, and arguments which are not appropriately developed
are waived.” Karn v. Quick & Reilly Inc, 912 A.2d 329, 336 (Pa.Super.
2006). See also Pa.R.A.P. 2111–2119 (discussing required content of
appellate briefs and addressing specific requirements of each subsection of
brief on appeal). Thus, issues which are not developed in the brief's argument
section will be deemed waived. Harkins v. Calumet Realty Co., 614 A.2d
699, 703 (Pa.Super. 1992).
To properly develop an issue for our review, an appellant bears the
burden of ensuring that the argument section of his or her brief includes
citations to pertinent authorities as well as a discussion and analysis of that
relevant legal authority. See Pa.R.A.P. 2119(a); Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa.Super. 2007) (“[I]t is an appellant's duty to present
arguments that are sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with references to the record and
with citations to legal authorities.” (citations omitted)). Where an appellant's
argument rests on evidence in the record, he must make appropriate
references to the record in his argument. Commonwealth v. Franklin, 823
A.2d 906, 910 (Pa. Super. 2003).
“Although this Court is willing to construe liberally materials filed by
a pro se litigant, pro se status generally confers no special benefit upon an
appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251–252 (Pa.Super.
2003). For this reason, an individual who chooses to represent himself in a
-9-
J-S19034-22
legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing. Adams supra at 498;
Commonwealth v. Rivera, 685 A.2d 1011 (Pa.Super. 1996).
Accordingly, Appellant’s pro se status herein does not relieve him of the
obligation to follow the Rules of Appellate Procedure. Jiricko v. Geico Ins.
Co., 947 A.2d 206, 213 n.11 (Pa. Super. 2008). As this Court has made clear,
we “will not act as counsel and will not develop arguments on behalf of an
appellant.” Hardy, supra at 771. Where 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.” Id.Our review of Appellant’s pro se brief exposes substantial violations of
the briefing requirements set forth in Pa.R.A.P. 2111–2119. First, as
previously stated, Appellant failed to set forth a clear statement of questions
involved. See Pa.R.A.P. 2111(6)(a) (stating “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”).
In addition, “[t]he Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority. Failure to do so constitutes waiver of the
claim.” Giant Food Stores, LLC v. THF Silver Spring Dev., L.P., 959 A.2d
438, 444 (Pa.Super.2008) (citations omitted); Pa.R.A.P. 2119(a) and (b). The
disjointed and at times unintelligible “Argument” portion of Appellant’s brief
- 10 -
J-S19034-22
fails to conform his purported arguments to specific questions raised for
appellate review in violation of Pa.R.A.P. 2119(a). His narrative is punctuated
with definitions of terms, citations to statutes and caselaw which are not
germane to the instant appeal, like res judicata and subject matter
jurisdiction. Brief for Appellant at 12-28. Furthermore, Appellant often
engages in fatuous speculation and fails to deliver a cogent legal analysis.
Furthermore, although Appellant's brief contains a section labeled
“Statement of the Case,” this section does not include a statement of the form
of action; a brief procedural history relevant to the within appeal from the
October 5, 2021, Decree; the name of the judge whose determination
Appellant seeks to have reviewed; or a condensed chronological statement of
the facts necessary to review the determination, as required by Pa.R.A.P.
2117. See Pa.R.A.P. 2117. Instead, Appellant’s “Statement of the Case”
begins as a summary of his personal life and time spent caring for his parents
and continues with references to determinations in prior legal proceedings
with which he disagrees.
For example, Appellant maintains “[o]n May 24, 2016, Linda DiCesare
was declared incompetent, which was a direct violation of her Constitutional
Right to be Heard.” Brief for Appellant at 15 (emphasis in original). He also
asserts “42 Pa.C.S. § 5505 prevents the Orphans’ Court from having
Jurisdiction to modify or revoke the May 1, 2017, Stipulation/Order more than
30 days after its entry, including the Order entered May 25, 2018.” Id. at 19.
- 11 -
J-S19034-22
(emphasis in original). Finally, he asks this Court to “void the Orders of the
lower court from June 1, 2017, to present.” Id. at 43.
Moreover, Appellant’s argument fails to conform to Pa.R.A.P. 2119(b),
(c), in that it contains allegations of the orphan’s court’s denial of numerous
constitutional rights of his and of other individuals that are not dispositive
herein. For instance, he references the personal property of a nurse, Arlene
Prohaska, which allegedly had been taken from the Paxford Road home in
violation of her due process rights under the Second, Fourth, and Fourteenth
Amendments to the United States Constitution. Brief or Appellant at 26, 32.
Appellant also focuses on alleged violations of his Second Amendment rights
under the Constitution. Brief for Appellant at 34-35. In addition, he states
that when Linda DiCesare was declared incompetent on May 24, 2016, her
“Constitutional Right to be Heard” was violated. Id. at 15.
In light of the foregoing, Appellant has failed to comply in substantial
respects with the Rules of Appellate Procedure. Because of these considerable
defects, we are unable to perform effective appellate review, and we quash
Appellant’s appeal for failure to comply with our Rules of Appellate Procedure.
Appeal quashed.1
____________________________________________
1On June 6, 2022, Appellant filed his “Motion to Dismiss Orders for Lack of
Subject Matter Jurisdiction and Fraud Upon the Lower Court.” Therein,
Appellant asks this Court to dismiss the orphans’ court Orders entered on May
24, 2018, pertaining to the sale of the Paxford Road property, and August 29,
2018, which imposed a clear deadline by which Appellant and his family were
(Footnote Continued Next Page)
- 12 -
J-S19034-22
President Judge Panella joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2022
____________________________________________
to vacate the property. Appellant alleges in his Motion that the orphans’ court
lacked jurisdiction to enter the Orders. However, these Orders are not before
this Court herein, as the instant estate administration appeal is from the Order
entered on October 5, 2021. Moreover, Appellant failed to file a timely appeal
from the May 25, 2018, Order, and his Emergency Motion to stay the August
29, 2018, Order was denied. Thus, he has waived any claim pertaining to
these Orders. See Pa.R.A.P. 903(a) (requiring the filing of a notice
of appeal within 30 days after the entry of the order from which the appeal is
taken); Porter v. Nikita Lodging, Inc., ___ A.3d 2022___, PA Super 78,
*8-9 (filed May 2, 2022) (concluding that the failure to timely appeal from an
order results in waiver of any issues related to that order, as this Court lacks
jurisdiction to consider such issues). As such, we quash Appellant’s June 6,
2022, Motion.
- 13 -