IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Estate of Gabriel Robles, Deceased : : No C.D Appeal of: Estate of Gabriel Robles : Argued: May 14, 2013 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: June 11, 2013 Attorney Fincourt B. Shelton (Shelton) appeals on behalf of the Estate of Gabriel Robles (Estate) from the March 27, 2012, order of the Court of Common Pleas of Philadelphia County, Orphans Court Division (trial court), which denied Shelton s petition to compel the Department of Public Welfare (DPW) to disgorge funds. We affirm. Gabriel Robles (Robles) died intestate, 1 survived by his mother, Lourdes Sierra (Sierra), and his daughter, Aisya Robles (Aisya). Sierra, as administratrix of the Estate, retained the law firm of Pelagatti and Pelagatti (Pelagatti) to investigate a 1 On March 6, 2005, Robles checked into Temple University Hospital with acute respiratory distress. Despite being at a high risk for venous thrombo-embolic disease because he was quadriplegic, he did not receive tests for a pulmonary embolism or anticoagulation treatments. On March 18, 2005, Robles left the hospital, and the next day he suffered a pulmonary embolism.

2 medical malpractice claim against Temple University Hospital related to Robles death. Pelagatti did not file a lawsuit before the statute of limitations expired. In June 2008, Sierra hired a separate law firm, The Colleran Firm, to bring a legal malpractice claim against Pelagatti. Pelagatti negotiated a settlement with the Estate for $175, (Legal Malpractice Settlement). Sierra changed counsel to Shelton to finalize the Legal Malpractice Settlement. On September 13, 2010, 2 the trial court ordered the matter settled subject to distribution. DPW asserted a medical assistance lien (Lien) against the Legal Malpractice Settlement to recover expenditures that could have been recovered in the original medical malpractice action. DPW agreed to reduce the Lien from $30, to $20, (Lien Settlement). On November 4, 2010, Shelton filed a petition with the trial court (first petition) asking to be named Aisya s guardian and requesting court permission to distribute $20, to DPW to satisfy the Lien Settlement. The first petition expressly stated that it was the petition of Lourdes Sierra, administratrix of the Estate of Gabriel Robles. (Trial Ct. Op. at 2.) The trial court named Shelton as Aisya s guardian. However, the trial court s order stated: The Guardian shall not enter into any settlement of any claim or cause of action without prior approval of this court. (Trial Ct. Order, 11/9/10, at 1.) 2 Judge Howland W. Abramson issued the September 13, 2010, order. Judge John W. Herron issued all subsequent orders. 2

3 On November 19, 2010, Sierra filed an objection claiming that she had not authorized the first petition, requesting that Shelton be removed from the guardianship. On January 25, 2011, Shelton forwarded a check for $20, to DPW without permission from the trial court and without Sierra s consent. That same day, the trial court restored Sierra as the guardian. On March 22, 2011, Shelton filed another petition (second petition) on Aisya s behalf seeking court approval of the allocation of the Lien Settlement. Sierra filed objections to the second petition. The trial court sustained Sierra s objections, dismissed the second petition, and ordered Shelton to file a petition under the caption of the Estate. On May 13, 2011, Shelton filed a petition on behalf of the Estate (third petition). Sierra objected to the third petition. Shelton failed to provide notice of the third petition to DPW, the Attorney General, or the Secretary of Public Welfare. On September 19, 2011, the trial court issued an order affirming the third petition in part and denying it in part and approved a distribution of assets. 3 3 The order stated: Distribution is hereby approved as follows: 1. Costs to the Colleran Firm of $10, Costs to Fincourt B. Shelton of $ Attorney fees of $60, payable to the Colleran Firm and Fincourt B. Shelton. 4. Department of Revenue Inheritance Taxes of $3, Department of Public Welfare of $ Administratrix s commission to Lourdes Sierra of $2, Reimbursement for Funeral and Cemetery costs to Lourdes Sierra of $8, (Funeral $4,975.00; Cemetery $2,061.00; Repas $1,000.00). (Footnote continued on next page ) 3

4 Three months later, Shelton filed a petition to compel DPW to disgorge the previously paid Lien Settlement. On March 27, 2012, the trial court denied the petition. Shelton appealed, and the trial court issued an Opinion Sur Appeal on July 17, 2012, affirming the decision denying the disgorgement of funds. The trial court stated: Not only did [Shelton] act without the requisite authority or court approval, but he failed to file a timely appeal of the September 19, 2011 order by this court that denied his distribution to DPW and he failed to follow the appropriate administrative procedure to obtain a refund from the DPW. (Trial Ct. Op. at 1.) The trial court also found that [b]ased on this persistent pattern of misrepresenting the identity of the petitioner and pushing the boundaries of his client s consent, there is no equitable basis to afford [Shelton] s requested relief of ordering the DPW to disgorge his unauthorized payment to it. (Id. at 7.) Shelton appealed to the Superior Court. On September 17, 2012, DPW filed a motion to transfer the matter to this court, which the Superior Court granted. 4 Shelton argues that the trial court erred by denying his petition to compel DPW to disgorge funds. We disagree. (continued ) 8. Counsel fee and costs to Harkins and Harkins of $3, (Trial Ct. Order, 9/19/11, at 1.) 4 On appeal from an order of the orphans court, this [c]ourt s scope of review is limited to determining whether the record is free from legal error and whether the court s factual findings are supported by the evidence. In re Estate of Berry, 921 A.2d 1261, 1263 n.1 (Pa. Cmwlth. 2007). 4

5 Here, Shelton: (1) paid DPW the $20, Lien Settlement without court permission; 5 (2) failed to timely appeal the September 19, 2011, distribution order denying his requested distribution to DPW; 6 (3) failed to exhaust all statutorily prescribed administrative remedies; 7 and (4) bore personal responsibility for settling DPW s Lien against the Estate as medical malpractice, which led to his erroneous belief that DPW was entitled to its claim. 8 Thus, the trial court properly denied Shelton equitable relief. See In re Estate of Aiello, 993 A.2d 283, 288 (Pa. Super. 2010) (noting that a person seeking equity must do equity). Accordingly, we affirm. ROCHELLE S. FRIEDMAN, Senior Judge 5 It is unclear from the record before us whether Shelton knowingly violated the trial court s January 25, 2011, order requiring court approval of settlements or paid the Lien Settlement prior to the order being issued. An order is an order, not a suggestion. Cleary v. Department of Transportation, 919 A.2d 368, 371 (Pa. Cmwlth. 2007). Nonetheless, cases involving minors, by rule, require court approval of such disbursements. See, e.g., Pa. R.C.P. No. 2039(a). the order. 6 Pa. R.A.P. 903(a) requires that notice of appeal be filed within 30 days after the entry of 7 See Section 503(a) of the Fiscal Code, Act of April 9, 1929, P.L. 343, as amended, 72 P.S. 503(a) ( The Board of Finance and Revenue shall have the power... to hear and determine any petition for the refund of... moneys paid to the Commonwealth and to which the Commonwealth is not rightfully or equitably entitled. ). 8 The trial court noted in its opinion that Shelton had failed to protect the interests of the minor beneficiary because he did not advocate that the funds should be allocated to a wrongful death action under which the DPW payments would not have been required. (Trial Ct. Op. at 3.) 5

6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Estate of Gabriel Robles, Deceased : : No C.D Appeal of: Estate of Gabriel Robles : O R D E R AND NOW, this 11th day of June, 2013, we hereby affirm the March 27, 2012, order of the Court of Common Pleas of Philadelphia County, Orphans Court Division. ROCHELLE S. FRIEDMAN, Senior Judge