IN THE SUPERIOR COURT OF PENNSYLVANIA
MIDDLE DISTRICT
_________________________________________________
No. 1135 MDA 2022
_________________________________________________
IN RE: EUGINA GRIVAS, An Incapacitated Person
Irene Grivas
Appellant
vs.
Ephrata National Bank
Appellee
._________________________________________________
APPELLANT’S REPLY BRIEF
_________________________________________________
Appeal from the Order of the Honorable Jay Hoberg, C.P.J. dated August 1,
2012, and Opinion Sur Appeal of the Honorable Jeffrey Reich, J dated October
11, 2022
_________________________________________________
Irene Grivas, Pro Se
426 South West End Avenue
Lancaster, PA 17603
Phone: 7172915790
Appellant, pro se
2
TABLE OF CONTENTS
INTRODUCTION 4
ARGUMENTS 5
A. Appellant’s Appeal is not barred by res judicata or collateral estoppel 5
B. The Orphan’s Court abused its discretion 10
CONCLUSION 17
3
TABLE OF AUTHORITIES
Cases
Ambrogi v. Reber, 932 A.2d 969, 974 (Pa. Super. 2007), appeal denied, 597 Pa.
725, 952 A.2d 673 (2008) 10
Becirovic v. Dep’t of Human Servs. (Pa. Cmwlth., No. 2139 C.D. 2015, filed
Sept. 9, 2016), 2016 WL 4709195 (unreported) 10
Clark v. Troutman, 502 A.2d 137, 139-41 (1985) 6
General Accident Fire & Life Assurance Corp. v. Flamini, 445 A.2d 770, 772
(Pa. Super. 1982) 5
In re Larson, 616 A.2d. 529 (Pa. 1992) 10
Kannel v. Kennedy, 94 F.2d 487, 488 (3d Cir. 1937) 5
McGill v. Southwark Realty Co., 828 A.2d 430, 434 (Pa.Commw. 2003) 5
Monarca v. Annie’s Express Laundry, LLC, 372 MAL 2020 8
Pennsylvania State Univ. v. County of Centre, 615 A.2d 303, 306-07 (Pa. 1992)
5
Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996) 6
Other Authorities
Black’s Law Dictionary 517 (5th ed. 1979) 10
Restatement (Second) of Judgments § 27 (1982) 6
Restatement (Second) of Judgments § 28 (1982) 6
Rules
Pa.R.C.P. 227.1(c) 7
4
INTRODUCTION
Appellant filed the instant Appeal challenging the decision(s) of the Court
of Common Pleas of Lancaster County, Pennsylvania Orphans’ Court Division
(Hoberg J), which decision was issued on August 1, 2012 denying Appellant’s
exception to the adjudication of June 29, 2012. Appellant also challenges said
courts opinion sur appeal (Reich J), which decision was issued on October 11,
2022, affirming the determinations set forth in the June 29 th adjudication.
Accordingly, Appellant raises two issues for determination. First,
Appellant posits the issue whether there was a mistake at the Trial Court, which
mistake prejudiced Appellant. Next, Appellant seeks whether the Court failed to
conduct an appropriate review of the June 29 th adjudication, and whether the
Court erred when it determined Appellant’s objection thereof as a re-litigation
of issues.
Interestingly, Appellee alleges that the instant appeal is barred by res
judicata and collateral estoppel. Appellee also alleges that the Trial Court did
not abuse its discretion, and that its decision(s) were sound, therefore
warranting the dismissal of this appeal.
ARGUMENTS
A. Appellant’s Appeal is not barred by res judicata or collateral
estoppel
5
The Appellee argues that the Appellant’s claims are barred by res
judicata.
It is trite law that "[w]hile the general rule for either collateral estoppel or
res judicata to apply is that a final and valid judgment must have been entered
… this rule is not without exception." See Kannel v. Kennedy, 94 F.2d 487,
488 (3d Cir. 1937) (emphasis added). "It is the general rule that the doctrine of
res judicata does not apply in the absence of a final judgment. There are
exceptions, however, to this rule." Id.
Moreover, even where the requirement for "a valid final judgment on the
merits" is applicable, what a "final judgment on the merits" means is very broad
in Pennsylvania for purposes of applying res judicata. See General Accident
Fire & Life Assurance Corp. v. Flamini, 445 A.2d 770, 772 (Pa. Super. 1982)
("Pennsylvania law takes a broad view on what constitutes a ‘final judgment’ for
purposes of res judicata. ”).
Pennsylvania generally follows the Restatement (Second) of Judgments
with respect to collateral estoppel. See McGill v. Southwark Realty Co., 828
A.2d 430, 434 (Pa.Commw. 2003); see Pennsylvania State Univ. v. County of
Centre, 615 A.2d 303, 306-07 (Pa. 1992). Accordingly, its courts apply the
doctrine of collateral estoppel when the following criteria are met: (1) "the issue
decided in the prior adjudication was identical with the one presented in the
later action"; (2) "there was a final judgment on the merits"; (3) "the party
against whom [collateral estoppel] is asserted was a party or in privity with a
6
party to the prior adjudication"; and (4) "the party against whom it is asserted
has had a full and fair opportunity to litigate the issue in question in a prior
action." Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996); accord Restatement
(Second) of Judgments § 27 (1982). If those four elements are satisfied, the
court should also consider whether exceptions to the general rule are applicable.
See Restatement (Second) of Judgments § 28 (1982) (enumerating exceptions);
Clark v. Troutman, 502 A.2d 137, 139-41 (1985). Only if all the requirements
for collateral estoppel are satisfied should a court preclude a party from raising
an issue anew.
Contrary to Appellee’s assertions, Appellant does not re-litigate issues
that were settled by the Trial Court(s). Notably, in the instant appeal, Appellant
generally asserts the following (see Appeal Brief, page 2):
Regarding Appellant’s first issue on appeal, Appellant maintains that the
Court erred in finding that Appellee acted reasonably in the management of the
rental properties owned by the Estate of Eugenia Grivas, and that the Court
erred in finding that Appellee met its fiduciary duties to the Estate. The Trial
Court dismissed this issue on the ground that Appellant had failed to preserve
the issue accordingly, and that to the extent the issue would be considered
properly preserved, the expenditures raised in the account were proper.
While Appellant understands that issues not raised in the lower court are
waived and cannot be raised for the first time on appeal (Pa.R.A.P. 302), the
filing of a post-trial motion is essential to preserve issues for appellate review.
7
See Pa.R.C.P. 227.1(c). In this case, Appellant tried all in her position to
challenge the accounting, which attempts, considering Appellant’s
circumstances, amount to a sufficient preservation of the issues. For instance,
prior to being dismissed as Appellant’s attorney, James D. Wolman engaged in
abandonment and sabotage efforts by failing to work on the motion to quash the
2012 adjudication (see Appellant’s Strict (12) Day Required R.A.P. 1925(b)
Statement, paragraph 2c).
Also, Appellant presented a Motion for Releasing Funds and Unlawful
Monthly Fees, which resulted to additional penalties on the inheritance taxes
that prevented the Estate from being administered for over eight years, long
after the guardianship ended (see Appellant’s Strict (12) Day Required
R.A.P. 1925(b) Statement, paragraph 2e). Appellee illegally withheld estate
funds for over eight years after the guardianship ended, without authorization,
order, cause or reason in doing so. They did this while conveniently charging
guardianship fees of over $1,600 without authorization or court’s approval.
Appellant’s attempts, as described above, sufficiently preserved the issues
that are subject of this appeal. In Monarca v. Annie’s Express Laundry, LLC,
372 MAL 2020, the Pennsylvania Superior Court created an exception focused
on the mindset of the entity which possessed/controlled the evidence.
It should be observed that the Trial Court erred by holding that the
expenditures raised in the account were proper. For instance, the rental
8
properties operated at a net loss or negative cash flow year after year, even
though the properties were owned free and clear of any mortgages.
In addition to the foregoing, Appellee breached its fiduciary duties when
it inter alia, retained the properties for almost ten years, in spite of the losses
that were being made thereat, and that the Ms. Grivas only had $28,000 in
liquid assets. Appellant also had an expert witness, David Stull, testify of how
the rents charged by Appellee were below-market; the expenses for the
properties were disproportionately high; and that some of the expenses were
questionable. Further, Appellee hardly performed annual reviews of the rental
amounts of the management company, and gave Trinity Management the
discretion to set rental rates.
Accordingly, as guardian, it was Appellee’s duty to preserve the assets of
the Estate, which duty Appellee failed to keep.
Regarding Appellant’s second issue on appeal, contrary to Appellee’s
contention, the issue of whether Appellee duly filed a Petition to Expand
Principal was never settled. The accounting reflects principal disbursements of
$53,323.03, for which Appellee had no approval. For instance, Appellee failed
to require Trinity Management to obtain prior approval from Appellee of any
needed repairs before making them, even if the repairs were costly. Besides, in
the event Trinity Management reported the need for repairs, Appellant never
confirmed that the work was needed in the first place. The accounting that was
approved by the Trial Court was faulty since the Court was not duly notified of
9
the Appellee’s intention to expand the principal. Pursuant to 20 Pa. C.S. §
5536(a), any payment or application of the income from a principal of the estate
of an incapacitated person, must only be made following a notice to the Court.
In this case, Appellee made no attempt to expend the principal, contrary to said
law. The foregoing is sufficient reason to reverse the decision affirming the
accounting.
Regarding the third issue on appeal, the Trial Court never settled the fact
that Court gave more weight to the evidence presented by Timothy Patches, in
disregard of David Stull, Appellant’s independent expert, regarding the
appropriate rental values. The Court’s reliance on Timothy Patches’ alone is
erroneous because Timothy Patches’ testimony failed to take note of the fact
that the rents being charged were below market value, the expenses were
disproportionately high, and that some ongoing expenses were questionable.
Timothy Patches also did not discuss the negative cash flow year after year. The
foregoing alone shows how Timothy’s testimony was one sided, and failed to
address the pertinent issues bedeviling the Estate.
In addition to the foregoing, Appellee fails to address any of the improper
ex parte communications to the Judge in 2010 and all the factors that caused a
mistrial thereof. An ex parte communication occurs when information is
exchanged between a judge and one of the parties to a pending proceeding
without notice to an adverse party. See Black’s Law Dictionary 517 (5th ed.
1979). It is notable that ex parte communications regarding the pending case are
10
prohibited under Pennsylvania law. For instance, the Pennsylvania Supreme
Court imposed a sanction in a case involving ex parte communication. In In re
Larson, 616 A.2d. 529 (Pa. 1992).
B. The Orphan’s Court abused its discretion
Appellee argues that the Orphans’ Court conducted a full and fair hearing
and did not abuse its discretion.
An abuse of discretion exists if the trial court renders a judgment that is
plainly unreasonable, arbitrary or capricious, fails to apply the law, or was
motivated by partiality, prejudice, bias or ill will. See Ambrogi v. Reber, 932
A.2d 969, 974 (Pa. Super. 2007), appeal denied, 597 Pa. 725, 952 A.2d 673
(2008).
An abuse of discretion will be found where the record shows there was
fraud, bad faith, capricious action, or an abuse of power. See Becirovic v. Dep’t
of Human Servs. (Pa. Cmwlth., No. 2139 C.D. 2015, filed Sept. 9, 2016), 2016
WL 4709195 (unreported).
The Appellee argues that the District Court rightly dismissed Appellant’s
case with prejudice because Appellant’s Complaint could not be saved by
amendment because it was barred by res judicata.
In this case, Appellee, ENB was appointed guardian of Appellants
mothers Estate. Appellee then hired a third party, Trinity Management, to
manage the Estate’s five rental properties in Lancaster city. First, the Trial
Court abused its discretion when it failed to consider that Tim Patches, the
11
owner of Trinity Management, had filed for bankruptcy in 2002, yet Appellee
chose to hire them. Trinity Management then used shady and convicted
contractors to work on the Estate’s properties without obtaining requisite
permits for the work, and without providing the cancelled checks that were
constantly demanded.
The Trial Court also abused its discretion when it failed to consider
abusive guardianship that Appellant has been subjected to by Appellee.
Appellant, through the help of a forensic expert, discovered double payments,
fraudulent invoices containing overcharges. Some of the incidences of
Appellee’s fraud and blameworthy conduct are as follows: $3000 payments to
ALL Sweeps for work not done at 11 Pearl Street on a ½ chimney, when the
owner, Mark Pullano, was in prison; $950 payment on similar work done to a
different property and owner at 13 Pearl St.; $1325 billed and paid twice, once b
Trinity Management and the other time by Appellee on the same job; $375
payment for the similar job payment of $1325; $2,490 of questionable and
unidentified work on College Avenue, which work appears fraudulent;
$3641.91 of double payment as evidenced on Appellee’s Memorandum of
Account; $547.20 of overpayment as admitted in Appellee’s Memorandum of
Account; and $1831.40 of deposit payment on College Avenue for work not
done nor refunded (See March 29, 2021 Forensic Report Questioned Cost
Supplement; Appellee’s Memorandum of Account; Appellee’s ExParte
Communication with the Court).
12
The Trial Court abused its discretion when it disregarder Appellee’s
improper service and granted Appellee’s improperly served petition. In 2009,
Appellee filed two separate petitions to sell real estate at a fire sale, which the
court rejected twice for failure to properly serve heirs. However, the court
eventually granted the petitions despite Appellee’s failure to properly serve
Appellant or Appellant’s former attorney.
The Trial Court also abused its discretion when it overruled Appellants
objections to the account, which contradicted pertinent evidence presented in
Court, and the testimony of forensic expert(s). Said evidence shed light on inter
alia, glaring anomalies, bankrupt Trinity Management, fabricated invoices from
convicted felon contractors, lack of permits, and cancelled checks (see
Appellant’s Strict (12) Day Required R.A.P. 1925(b) Statement, paragraph
2a).
The Trial Court also abused its discretion when it failed to recognize the
fact that Appellant had terminated the services of Attorney James D. Wolman,
for his incompetence in failing to take appropriate actions in the case (see
Appellant’s Strict (12) Day Required R.A.P. 1925(b) Statement, paragraph
2b). On January 31, 2022, Appellant drafted Attorney James D. Wolman a letter
dismissing him as her counsel for the guardianship case (see Appellant’s
January 31, 2022 letter to Attorney James D. Wolman). James D. Wolman
refused to heed to Appellant’s instructions to him, to supplement the trial brief
to include all the objections, fraud, ex parte communications, and other
13
pertinent issues. The withdrawal of James D. Wolman was also necessary to
comply with the Court’s Order of prohibition against hybrid representation.
However, Appellant’s praecipe withdrawing James D. Wolman did not reflect
on the Court’s docket. Appellant therefore contacted James D. Wolman
severally, to have the praecipe entered and docketed (see Appellant’s April 27,
2022 letter to Attorney James D. Wolman; and Appellant’s October 26,
2022 letter to Attorney James D. Wolman).
The Trial Court also abused its discretion when it failed to consider
Appellant’s pro se filings before and after dismissing attorney James D.
Wolman. The Court’s denial of Appellant’s pro se filings was a violation of her
14 th Amendment Due Process rights. Procedural due process is based on
principles of fundamental fairness. Due Process "is a flexible notion which calls
for such procedural safeguards as a particular situation demands to ensure
fundamental fairness to a potentially aggrieved litigant." See Corra v. Coll, 451
A.2d 480, 482 (Pa. Super. 1982). On one hand, while the Court refused to
accept Appellant’s pro se filings, such as the praecipe for withdrawal of James
D. Wolman, the Court accepting Appellant’s pro se appeal to the superior court.
The foregoing shows how the Trial Court had double standards, which shows
how Appellant was subjected to unfairness.
It is notable that prior to being dismissed as Appellant’s attorney, James
D. Wolman engaged in abandonment and sabotage efforts by failing to work on
the motion to quash the 2012 adjudication (see Appellant’s Strict (12) Day
14
Required R.A.P. 1925(b) Statement, paragraph 2c). The 2012 adjudication
was faulty because there was improper ex parte communication, conflict of
interest, fraud, perjury, conspiracy, collusion, and racketeering, which was
aimed at depleting the Estate’s assets.
The Trial Court also abused its discretion when it failed to address
Appellee’s breach of fiduciary duty, which breach was evidenced in Appellee’s
lack of transparency, failure to provide proper accounting and annual reporting,
inaccurate annual income tax returns, expending principal without an approval
from the court including inter alia, caregiving, nursing homes, attorney fees,
rental property expenditures (see Appellant’s Strict (12) Day Required R.A.P.
1925(b) Statement, paragraph 2d).. Appellee also breached its fiduciary
duties by failing to safeguard the New Jersey and Greece assets, collecting
unpaid loans and unauthorized E trade transactions, filing untimely annual
accounts with the court, preventing real estate fire sales, failure to reduce capital
gains tax, utility shut offs, charging excessive guardianship fees, commissions,
unauthorized monthly maintenance fees, hiring third party management
company that is bankrupt, and that uses convicted felon contractors without
permits, loss of the New Jersey real estate, rents, equipment, New Jersey tax
lien payments, and other rental property expenditures without value or court
approval (see Appellant’s Strict (12) Day Required R.A.P. 1925(b)
Statement, paragraph 2f).
15
The Trial Court abused its discretion when it failed to consider
Appellant’s Motion for Releasing Funds and Unlawful Monthly Fees, which
resulted to additional penalties on the inheritance taxes that prevented the Estate
from being administered for about eight years, long after the guardianship ended
(see Appellant’s Strict (12) Day Required R.A.P. 1925(b) Statement,
paragraph 2e).
The Trial Court also abused its discretion when it failed to consider
Appellee’s abuse of the court through non-compliance with discovery orders,
subpoenas, and failure to produce documents. A hearing on the petition for non-
compliance of discovery orders, subpoenas and other documents was held.
However, the Court did not enter any Order. It was only just if the Court
considered Appellee’s false allegations of providing all non-privileged material
in their custody and control, while deliberately withholding all relevant
documents such as Trinity’s expense/income statements, receipts, cancelled
checks, letters from family, correspondences with management, including the
redacted undated internal minutes, complete annual accountings, and Appellee’s
legal bills to handicap and prevent Appellant from effectively presenting her
case (see Appellant’s Strict (12) Day Required R.A.P. 1925(b) Statement,
paragraph 2g).
The Court also abused its discretion when it ignored the Stipulation
entered fraudulently without Appellant’s approval and/or knowledge. The "back
door Stipulation" was illegally entered by colluding with opposing counsel
16
McHale who was ultimately suspended as a result thereof. Also, a hearing to
dissolve the Stipulation was held in 2019 by attorney Nathan Volpi. However,
the court failed to enter a ruling from that hearing nor the matter addressed in
the 2022 adjudication or subsequent Opinion.
Appellee further colluded with Appellant’s other counsel Scott Mitchell,
despite the conflict of interests with Appellee attorney paralegal (Karen
Mitchell) who happened to be the mother and her son. Scott Mitchell who was
Appellant’s former attorney also representing Appellant during the 2012 appeal
to sabotage Appellant’s case as referenced on page 8 of appellee’s brief.
The Trial Court abused its discretion when it failed to award consider that
Appellant incurred attorney’s fees, costs, forensic costs, and other fees related to
her investigation of Appellee’s fraud to the Estate (see Appellant’s Strict (12)
Day Required R.A.P. 1925(b) Statement, paragraph 2i). The Court also
abused its discretion when it failed to sanction Appellee for their illegal conduct
throughout, and after, the guardianship, filing a fraudulent stipulation,
fabricating invoices, statements, ledgers, and letters (see Appellant’s Strict
(12) Day Required R.A.P. 1925(b) Statement, paragraph 2j). Instead, the
Court went ahead and affirmed the award of over $53,000 in attorney fees to
Appellee, charged to the account although the appellee expanded principal
without court approval during the guardianship.
CONCLUSION
17
For the reasons set forth above and in Appellant’s opening brief,
Appellant has stated valid claims for relief that are not barred by the res
judicata doctrine and/or collateral estoppel. This Court should reverse the Trial
Court’s erroneous decision(s) to the contrary and remand this matter for further
proceeding.
Respectfully Submitted,
________________________
Irene Grivas, Pro Se
426 South West End Avenue
Lancaster, PA 17603
Phone: 7172915790
Appellant, pro se
Dated: _____________
CERTIFICATE OF SERVICE
I hereby certify that on _____________, I sent the foregoing to the
Parties herein to their respective addresses.
18
Dated: _____________
________________________
Irene Grivas, Pro Se
426 South West End Avenue
Lancaster, PA 17603
Phone: 7172915790
Appellant, pro se
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