OBJECTOR TO ACCOUNTING OF POWER OF ATTORNEY AGENT SANCTIONED FOR DILATORY, OBDURATE AND VEXATIONS CONDUCT

The court directed objector in this estate matter to pay the responding party’s attorney fees under 42 Pa. C.S. 25037 where the pro se objector engaged in dilatory, obdurate and vexations conduct such that a straightforward hearing on two objections turned into a “grueling, drawn-out farce.” The court required objector to pay attorney fees.

          Decedent, Gloria Capobianco, executed a power of attorney naming her son Nicholas Capobianco as her agent on Sept. 5, 2003. Nicholas signed an acknowledgment form at the time of execution but said he never acted as decedent’s agent. Decedent revoked the 2003 power of attorney by executing a second power of attorney on Nov. 1, 2005, naming her son Otto Capobianco as her agent. In May 2018, objector Geraldine Jones, one of decedent’s seven children, filed a petition to compel an accounting of Nicholas’ actions as decedent’s agent. Nicholas filed an account on Nov. 15, 2018, per a court decree. The account demonstrated that Nicholas took no actions as decedent’s agent during the period from Sept. 5, 2003, to Nov. 1, 2005. Jones filed objections to the account. The court noted that at a hearing on the matter, Nicholas gave credible testimony that he took no actions as decedent’s agent. Nothing about his appearance, bearing, conduct, demeanor or manner of testifying impugned his credibility, the court noted in its opinion overruling the objections. The court also considered who should bear the cost of the litigation at bar. In the U.S each party typically pays their own attorney fees. However, under 42 Pa. C.S. 2503(7), a court may award attorney fees as a sanction again another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. Generally, conduct is dilatory where the party demonstrates a lack of diligence that delays proceedings unnecessarily and causes additional work. Moreover, conduct is obdurate when a party is stubbornly conduct means that the litigation served the sole purpose of causing annoyance. Objector’s conduct in this case satisfied all three definitions, the court concluded. Her overall performance suggested little preparation, organization or understanding of either the rules of procedure, evidence or decorum, the opinion stated. The court consistently cautioned objector to ask concise and probing questions, narrow her focus and refrain from outbursts, but objector consistently defied the warnings. Both objector’s outburst and the time the court took to addressed them turned what should have been a straightforward hearing on two objections into what the court described as a grueling, drawn-out farce. Objector spoke “an infinite deal of nothing and, in doing so, buried the issues under a mound of chaff,” the court wrote. She also resorted to pantomime, threw her arms in the air and held them there as a sign of frustration. “Theatrics and hyperbole are no substitute for persuasive evidence and sound reasoning,” the court observed in its opinion finding that objector should be sanctioned under 2503(7) for her dilatory, obdurate and vexations conduct. As such, the court awarded Nicholas his attorney fees.

Reference: Digests of Recent Opinions, Pennsylvania Law Weekly, 42 PLW 963, Tuesday, October 8, 2019,

In re: Estate of Capobianco, PICS case No. 19-1126 (C.P. Philadelphia Sept. 14, 2019)

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