In re Onorato

39 Pa. D. & C.5th 280
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJuly 1, 2014
DocketNo. 514 PR of 2012
StatusPublished

This text of 39 Pa. D. & C.5th 280 (In re Onorato) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Onorato, 39 Pa. D. & C.5th 280 (Pa. Super. Ct. 2014).

Opinion

HERRON, J.,

Introduction

The account filed by an agent under a power of attorney granted by Mary Green raises the issue of whether the agent should be surcharged for breaching his fiduciary duty. Both the account and the agent’s shocking testimony reveal that he failed to exercise the powers for the benefit of the principal; he failed to keep a full and accurate record of all actions, and; and he did not exercise reasonable caution and prudence when he expended the principal’s assets to benefit himself and his family. Based on this record, he is surcharged $283,055, which shall be returned to Mary Green.

Background

Mary Green executed a general power of attorney dated April 5,2006 to appoint Antonio Onorato as her agent.1 Six years later, Ms. Green filed a petition to obtain an accounting from Onorato after she learned that her residence at 487 Robbins Avenue, Philadelphia, had been subject to a lien [282]*282due to nonpayment of real estate taxes. After consulting an attorney, she revoked the power of attorney.

Mr. Onorato filed his account on May 28, 2013. On its face, the account raised serious concerns. Although Onorato, as agent, had initially received $551,556.14 in principal, by the end of his agency there was nothing left. The details in the accounting were also troubling. The account revealed, for instance, that Antonio Onorato had signed $117,050 in checks that were made out to himself. Mr. Onorato also signed checks totaling $8,000 that were made out to his son, Salvatore, as well as a $700 check for his wife, Josephine. There were bank service charges for overdrafts and fees totaling $1,105. The account listed undocumented “cash withdrawals” of $13,121. “Online/ electronic banking deductions” with an unknown name of issuer totaled $27,185.64. Finally, nearly six pages in the account listed a staggering $109,988.91 in expenditures for unknown payees and issuers because “cancelled checks were not available.”2

Not surprisingly, Mary Green filed numerous objections to this account. After a period of discovery, Mr. Onorato submitted a supplemental account (Ex. R-l) to provide the names of the payees and issuers for the $109,988.91 expenditures listed in the original account.3 According to this supplemental account, Antonio Onorato had signed $66,850 in checks made out to himself. He signed $7,000 in checks made out to his son Marco Onorato. Mr. Onorato signed checks totaling $2,245.81 to PECO to provide electricity to his own residence at 815 Llanfair Road in Philadelphia. He also signed checks totaling $376 to pay [283]*283for gas service to his own residence as well as $8,227.00 to pay school taxes on his residence in Abington Township.

In light of these glaring irregularities, a hearing was held on the objections. Mr. Onorato testified that prior to retiring, he had been a handyman and tailor. In 2000, he was introduced to Mary Green (“Mary”) by her cousin for whom he had done home repairs. From 2000 to 2006, he saw Ms. Green three or four times a week. During these visits, he took her shopping or did whatever she needed at her house. On Sundays, she came over to Mr. Onorato’s house for dinner. He testified that around 2006 he noticed that Mary did not look well and advised her to see a doctor who diagnosed her as suffering from colon cancer. After her operation, she returned home and Mr. Onorato brought food to her every day. He was also aware that Mary had vision problems and suffered from macular degeneration.4

According to Mr. Onorato, Mary told him that she did not want to go into a nursing home as some of her relatives advised. She asked him to fix up a house she had at 815 Llanfair Road, but after spending $10,000 on the roof, he discovered termites and concluded it “was impossible to repair that house.” He testified that Mary then told him to “[bjuild a house over there.”5 She also told him that she wanted to do something for him by naming him power of attorney. And, in fact, she contacted an attorney on her own, Craig Falcone, who prepared several documents for her signature.6 On April 5, 2006, she executed the general power of attorney appointing Antonio Onorato as her agent (Ex. R-3); she signed a will appointing Onorato as [284]*284executor and primary beneficiary of her residuary estate (Ex. R-4); and she appointed Onorato to act on her behalf under a medical power of attorney (Ex. R-5).

Mr. Onorato constructed a new house on the 815 Llanfair property which, he asserts, Mary gifted to him by the deed she signed on August 3, 2006.7 He explained that Mary had wanted him to fix it up so she could live there with him rather than having to go to a nursing home. Throughout this period, Onorato maintained that Mary was aware the he was building the house and consented to all the expenditures for it because she knew “I only make $1,000 a month in my pension.”8 When asked how often Miss Green used to watch him build it, Onorato candidly replied: “She came a few time.”9 When the house was finished, Onorato moved into it. Mary came over for Sunday dinners,10 but never moved in herself. Nonetheless, Mary signed checks to pay for the architect, insurance, lumber, cabinets and Johnny-on-the Spot at the construction site. (Ex. R-9).

Mr. Onorato admitted that he wrote checks from Mary’s accounts to cover expenses at his own properties because he asked and she told him he could do so. For example, he wrote checks from her account to pay PGW bills and water bills for 2316 Faunce Street which he owned.11 He also testified that most of the checks that he wrote to himself were to pay for the construction of the house at 815 Llanfair Road.12 He paid the real estate taxes on [285]*285his residence at 815 Llanfair Road from Mary’s account which he explained:

Because she told me to pay the tax. Because let’s say this way. I only made $1,000 a month, my pension. If she wouldn’t told me to build the house, I wouldn’t have no reason to do the house, because I can’t afford to pay the tax. So she said pay the tax for the house on Faunce Street, for the house Godfrey Avenue, one she have on Godfrey where she living now and the 815 Llanfair Road.13

On cross-examination, Onorato was asked about this co-mingling of funds and how it could be reconciled with the acknowledgment provision in the power of attorney document he signed that stated: “I shall keep the assets of the principal separate from my assets.” Ex. R-3 at 6. His response: “Well, to tell you the truth, I don’t read that.”14 He also stated he had not read the other provisions of the acknowledgment which stated in full:

I shall exercise the powers, for the benefit of the principal.
I shall keep the assets of the principal separate from my assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.
Signed: Antonio Onorato Date: 4-5-0615

[286]

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Cite This Page — Counsel Stack

Bluebook (online)
39 Pa. D. & C.5th 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-onorato-pactcomplphilad-2014.