Defense claims alleged thief was entitled to ‘gifts’
MEDIA COURTHOUSE >> Testimony in the trial of a woman accused of stealing from her former patient and neighbor in his dying days centered almost exclusively Wednesday on differing interpretations about her role as executrix of the estate.
Melissa Deal, 43, of Victoria Drive in Aston, is facing charges including theft by unlawful taking, theft by deception, receiving stolen property and conspiracy for allegedly taking more than $88,000 from her 79-year-old neighbor, James Mooney.
According to testimony in the case, Mooney was suffering from endstage prostate cancer when he came to live with his daughter, Jacqueline Desher, in September 2013.
Mooney enacted a new will Oct. 1, 2013, that named only Desher, her daughter Kim, and Kim’s three children as beneficiaries. Mooney also established that Deal, who had been hired as a caregiver, would have power of attorney and act as executrix of the estate.
The jury watched a video recording of that will being enacted in which attorney Natalie Dziobczynski asked Mooney if there was anyone else he wished to leave anything to.
“Not a soul,” he
Deal wrote two checks just prior to Mooney’s death for $10,000 apiece to herself and her husband, Richard. The memo lines of the checks indicated each was a “gift.”
Attorney William A. replied. Pietrangelo told Assistant District Attorney Tom Lawrie that he did not believe Deal had the authority to issue those checks. While Pennsylvania law allows those holding power of attorney to make gifts to spouses and direct family members, he said, it specifically excludes gifts for anyone else.
But fellow attorney William Malone told defense attorney Lindsay McDonald that giving someone else power of attorney does not diminish one’s own ability to give gifts. Both checks were identified in an accounting prepared by Malone’s firm as “known debts paid by decedent prior to death.”
Malone said an is entitled to for the executrix compensation work and in this case, Dziobczynski determined Deal’s commission should be $30,028. Several attorneys have noted it is common for an executor or executrix to take part of the commission prior to closing.
Also at issue in the case is the changing of beneficiaries on a Fidelity Investments account held by Mooney. The original beneficiary was Mooney’s estate, which was later changed to Kim and Jacqueline Desher, Desher’s three children and Deal.
Jacqueline Desher said Deal came by her home Oct. 10 and used a laptop computer, though she could not say whether it was the same laptop her father used to check his accounts. Mooney at this point was near death and uncommunicative, Jacqueline Desher testified. She said he had slept that entire day and did not speak with Deal.
Kim Desher said she had made her father a “password notebook” to access his accounts on his laptop. Deal allegedly took the laptop in the early part of the week Mooney died ostensibly to pay some bills. Kim Desher said the laptop was later returned to the family, but the notebook has vanished.
After gaining power of attorney, Kimberly Descher said Deal requested Social Security numbers, birthdates and other information for family members in case she needed to change the beneficiaries on the Fidelity account.
The family disputed the change in beneficiaries in a civil filing, which was later resolved by stipulation that provided Deal with $56,450. Kim Desher and her mother said they decided to stop fighting the beneficiary change because it had become too expensive to do so.
Malone indicated two checks were provided to his firm in 2014 for work to complete a final accounting of the estate, one of which indicated on the memo line it was for “POA invest.”
Malone said the payments were required to keep the dispute over the estate moving toward a conclusion. There were no criminal charges at that point, he said, and Deal had a legal right to use funds from the estate to cover those legal fees.
But Pietrangelo disagreed, finding those payments, as well as prior payments to attorney Dennis Woody in the Fidelity dispute, violated Deal’s fiduciary duty to Mooney.
Pietrangelo added that he believes Deal had no authority under the power of attorney to change the beneficiaries on the Fidelity account and that making that change essentially defunded a trust that was supposed to be set up for the grandchildren.
The trial, conducted by visiting Montgomery County Court of Common Pleas Judge S. Gerald Corso due to Richard Deal’s position as a Delaware County probation officer, is expected to conclude today.