In Re: Estate of Ford, L. Appeal of: Miller, A. ( 2018 )


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  • J-A02014-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    IN RE: ESTATE OF LEONA E. FORD,            :   IN THE SUPERIOR COURT OF
    DECEASED                                   :        PENNSYLVANIA
    :
    :
    APPEAL OF: ALVIN MILLER, P.O.A./           :
    EXECUTOR                                   :
    :
    :
    :   No. 1060 WDA 2017
    Appeal from the Order Entered June 23, 2017
    In the Court of Common Pleas of Allegheny County Orphans' Court at
    No(s): 3933 of 2015 (P.O.A.)
    BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
    MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 25, 2018
    Alvin Miller appeals pro se from the order removing him as the
    executor of the Estate of Leona E. Ford (“the Estate”), and sustaining the
    objections filed by petitioners Diane Miller Gustavson and Elizabeth Mowry1
    to Appellant’s Amended First and Final Accounts.2 We affirm.
    In April 2012, Ms. Ford (hereinafter “Decedent”) executed a power of
    attorney (“POA”) naming her grandson, Appellant, as her agent. Decedent
    ____________________________________________
    1 Decedent’s daughter, Joyce Ford, joined in the petitions.       However, she
    withdrew her participation from these proceedings.
    2 The order in question is appealable as of right. See Pa.R.A.P. 342(a)(5)
    (“An appeal may be taken as of right from the following orders of the
    [o]rphans’ [c]ourt Division: . . . [a]n order determining the status of
    fiduciaries . . . in an estate [.]”); see also In re Estate of Andrews, 
    92 A.3d 1226
    , 1228 n.1 (Pa.Super. 2014).
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    was thereafter placed in a nursing home. At that time, Decedent owned two
    properties: her main residence in Allegheny County, appraised at $75,700,
    and a vacation home in Somerset County, appraised at $65,200.          In April
    2015, Appellant, acting under the POA, agreed to sell both properties to
    Gerald Yurkov, whom he knew because of their common business in the
    plumbing industry. Appellant sold Yurkov the Allegheny County property for
    $21,000 and the Somerset County property for $24,000. The sale prices for
    the properties were determined based upon what Yurkov could afford.
    Yurkov paid no closing costs for either purchase.
    Decedent died on May 3, 2015, and the property transfers occurred
    shortly after her death. Appellant did not tell the beneficiaries of the Estate
    that the sales of the properties were pending at the time of Decedent’s
    death. On May 26, 2015, Decedent’s will was probated, naming Appellant as
    executor. Decedent’s daughters, Ms. Gustavson and Joyce Ford, along with
    Decedent’s granddaughter, Ms. Mowry, filed petitions seeking to set aside
    the sales of the properties, and requesting an accounting from Appellant.
    Ultimately, Ms. Gustavson and Ms. Mowry were able to purchase the
    properties back from Yurkov for the amounts he paid, plus attorney’s fees.
    The Allegheny County property was then sold to an arms-length purchaser
    for $43,000.
    The parties conducted discovery. At his February 2015 deposition,
    Appellant indicated that he was not charging a fee for his services as
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    Decedent’s agent acting under the POA. Orphans’ Court Order, 6/23/17, at
    2. However, following a trial, the orphan’s court determined that, “by check
    [No. 198] dated April 25, 2012, [Appellant] paid himself $15,000 for
    services as Agent for [Decedent],” and that he “comingled [Decedent’s]
    funds with his own money when he deposited the $15,000 check into his
    own funds.” 
    Id. Appellant filed
    a First Accounting, as well as Amended First
    and Final Accounts of his handling of the Estate. The orphan’s court found
    that the accounts “show[ed] payments already made to [Appellant] in the
    amount of $4,444.25 . . .”3 
    Id. The orphan’s
    court further found that “[t]he
    [I]nheritance [T]ax [R]eturn filed by [Appellant] shows a commission of
    $20,160 to [Appellant].”        
    Id. The orphan’s
    court additionally determined
    that “[Appellant] now also claims payment of fees as [POA] for [Decedent] in
    the amount of $19, 679.43.              
    Id. The orphans’
    court concluded that
    Appellant’s claimed “fees and commissions total in excess of $44,000.” 
    Id. On June
    23, 2017, the orphans’ court entered an order removing
    Appellant as executor and sustaining the objections to his Amended First and
    Final Accounts based on his handling of the Estate. The court concluded that
    ____________________________________________
    3 Although the orphan’s court opinion is somewhat unclear, as will be
    explained more fully infra, Appellant concedes that, acting under the POA,
    he wrote check No. 198 in the amount of $15,000 to himself, and deposited
    the check into his own personal account. Appellant’s brief at 15. He claims
    that, from this account, he thereafter paid himself $4,444.25 for his POA
    services, and used the remainder of the funds to pay for Decedent’s
    furnishings at the nursing home. 
    Id. at 13
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    Appellant had comingled Decedent’s funds and overcharged the Estate for
    his services as Decedent’s agent, and that the interests of the Estate were
    likely to be jeopardized by his continuance in office.         This timely appeal
    followed.4
    Appellant raises the following issues for our review:
    1. Whether the [orphans’] court erred in determining
    [Appellant’s] removal as executor was warranted due to
    his handling of the real estate.
    2. Whether the [orphans’] court erred in determining that
    [Appellant] comingled funds when acting as Agent under
    [the POA].
    3. Whether the [orphans’] court erred            in    calculating
    [Appellant’s] fees and commissions.
    4. Whether the [orphans’] court erred in removing
    [Appellant] as executor of the estate of [Decedent].
    Appellant’s brief at 5 (issues reordered for ease of disposition).
    Our standard of review of an orphans’ court’s decision is deferential.
    When reviewing a decree entered by the [o]rphans’
    [c]ourt, this [c]ourt must determine whether the record is free
    from legal error and the court’s factual findings are supported by
    the evidence. Because the [o]rphans’ [c]ourt sits as the fact-
    finder, it determines the credibility of the witnesses and, on
    review, we will not reverse its credibility determinations absent
    an abuse of that discretion.
    However, we are not constrained to give the same
    deference to any resulting legal conclusions. Where the rules of
    ____________________________________________
    4 The orphans’ court did not order Appellant to file a Pa.R.A.P. 1925(b)
    concise statement of errors complained of on appeal.
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    law on which the court relied are palpably wrong or clearly
    inapplicable, we will reverse the court’s decree.
    In re Estate of Strahsmeier, 
    54 A.3d 359
    , 362-63 (Pa.Super. 2012). An
    abuse of discretion is not merely an error of judgment. 
    Id. at 363.
    Rather,
    discretion is abused if, in reaching a conclusion, the court overrides or
    misapplies the law, or the judgment exercised is shown by the record to be
    manifestly unreasonable or the product of partiality, prejudice, bias or ill will.
    
    Id. Additionally, section
    3182 of the Probate, Estates and Fiduciaries Code
    governs the removal of personal representatives, and provides, in relevant
    part, as follows:
    § 3182. Grounds for removal.
    The court shall have exclusive power to remove a personal
    representative when he:
    (1) is wasting or mismanaging the estate, is or is likely to
    become insolvent, or has failed to perform any duty imposed by
    law; or
    ....
    (5) when, for any other reason, the interests of the estate are
    likely to be jeopardized by his continuance in office.
    20 Pa.C.S. § 3182(1), (5).
    “The court . . . on the petition of any party in interest alleging
    adequate grounds for removal shall, order the personal representative to
    appear and show cause why he should not be removed, or, when necessary
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    to protect the rights of creditors or parties in interest, may summarily
    remove him.” 20 Pa.C.S. § 3183.
    In his first issue, Appellant contends the orphans’ court erred in
    determining that his removal as executor was warranted due to his handling
    of the real estate.   According to Appellant, “[M]s. Gustavson and [M]s.
    Mowry attempt to substantiate their breach of fiduciary claim by alleging
    that they orally offered to purchase the Somerset real estate for $40,000 or
    $50,000 prior to [Decedent’s] death.”    Appellant’s brief at 16.   Appellant
    claims that offers to purchase are generally inadmissible due to their
    uncertainty and speculative nature.   
    Id. at 16-17.
      Appellant argues that
    there were no written offers for the property submitted by Ms. Gustavson
    and Ms. Mowry, and that the only written agreements were those between
    Appellant and Yurkov. 
    Id. at 17.
    Appellant fails to appreciate the nature of his role as fiduciary to
    Decedent and the Estate.    As agent and executor, Appellant was under a
    duty to administer Decedent’s assets in such a way as to preserve and
    protect them for distribution to the proper persons. See In re Kurkowski’s
    Estate, 
    409 A.2d 357
    , 360-61 (Pa. 1979). In the discharge of this duty, an
    executor “is regarded as a fiduciary and is held to the highest degree of
    good faith.” 
    Id. at 361.
    He will be required to exercise the same degree of
    judgment, skill, care, and diligence that a reasonable or prudent person
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    would ordinarily exercise in the management of his own affairs. See In re
    Estate of Campbell, 
    692 A.2d 1098
    , 1101-02 (Pa.Super. 1997).
    The orphans’ court specifically found the following facts.        The
    Allegheny County property was appraised at $75,700, and the Somerset
    County property was appraised at $65,200. Orphans’ Court Order, 6/23/17,
    at 1. Appellant sold Yurkov the Allegheny County property for $21,000, and
    the Somerset County property for $24,000, and that the sale prices for the
    properties were based upon what Yurkov could afford rather than their fair
    market value.        
    Id. In addition,
    Yurkov paid no closing costs for either
    purchase.      
    Id. The orphan’s
    court concluded that Appellant’s removal as
    executor is warranted based on his handling of Decedent’s real estate. 
    Id. at 2.
    The record supports the orphans’ court’s findings that Appellant, in
    derogation of his duties as executor of the Estate, sold two parcels of real
    property owned by the Estate for less than half of their appraised values. As
    removal of an executor is appropriate under section 3182(1) when he “is
    wasting or mismanaging the estate,” the orphans’ court’s decision to remove
    Appellant “due to his handling of the real estate in this matter” is amply
    supported by the record.        Accordingly, Appellant’s first issue warrants no
    relief.
    In his second issue, Appellant contends the orphans’ court erred in
    determining that he comingled funds when acting as agent under the POA.
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    According to Appellant, in 2012, upon the advice of his counsel, he wrote
    check No. 198 in the amount of $15,000 to himself and deposited it in a
    “newly[-]established account in his own name.” Appellant’s brief at 15. He
    claims that the money was to be used to fund Decedent’s funeral expenses
    in the event that she did not survive an upcoming hip surgery.          
    Id. According to
    Appellant, “he later came to realize that he should have opened
    the account in the name of Decedent.” 
    Id. He argues
    that he used those
    funds “to pay for Decedent’s needs” and “to reimburse himself for funds
    expended acting as [a]gent under POA.” 
    Id. As Executor,
    Appellant had a duty to see that his purely private
    interests were not advanced at the expense of the Estate.        See In re
    Pitone’s Estate, 
    413 A.2d 1012
    , 1015 (Pa. 1980).         The orphans’ court
    determined that Appellant comingled Decedent’s funds with his own money
    when he deposited the $15,000 check into his own personal account.
    Orphans’ Court Opinion, 6/23/17, at 2.         Appellant concedes that he
    deposited Decedent’s funds into his own personal account, and that he
    should not have done so. Appellant’s brief at 15. As the orphans’ court’s
    determination that Appellant improperly comingled Decedent’s funds with his
    own is supported by the record, his second claim warrants no relief.
    In his third issue, Appellant contends that the orphans’ court
    incorrectly calculated the amount of money he dispersed to himself.      He
    claims that, although he wrote check No. 198 in the amount of $15,000 to
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    himself and deposited it in his own personal account, those funds were used
    to pay himself for POA services rendered and for Decedent’s necessities.
    Appellant claims that he paid himself for his POA services $4,444.25 from
    the $15,000, and that the balance of that account was used to pay for
    Decedent’s furnishings at the nursing home.       Appellant argues that his
    counsel did not advise him that it was necessary to obtain a separate
    contract to charge POA fees.      He further claims that, when he visited
    Decedent, he felt it was a POA service and that he could charge for the time.
    He believed that $20 per hour was a reasonable fee to charge for his POA
    services. Finally, Appellant argues that, although he claimed an executor’s
    fee of $20,160 on the Inheritance Tax Return, he never received the
    commission.
    The findings of an orphans’ court judge who heard the testimony of
    witnesses are to be given the same weight as a jury verdict, particularly
    when those findings are based on determinations of credibility.       In re
    Estate of Campbell, 
    692 A.2d 1098
    , 1101 (Pa.Super. 1997). The test to
    be applied is not whether we, the reviewing court, would have reached the
    same result, but whether a judicial mind, after considering the evidence as a
    whole, could reasonably have reached the same conclusion. 
    Id. Here, the
       orphans’   court was presented with      Appellant’s First
    Accounting, in which he did not seek fees for his services, and in which he
    did not disclose that he had written the $15,000 check to himself. Instead,
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    he described the $15,000 check as one of the “Unknown Origin Checks
    Written by Leona E. Ford” “prior to [Appellant’s] administration.”               First
    Accounting, 11/5/15, at unnumbered 15.          Appellant now concedes that he
    did, in fact, write and deposit the $15,000 check into his personal account.
    Appellant’s brief at 13. He also concedes that he paid himself $4,444.25 for
    his   services   as   POA.     
    Id. Appellant prepared
       a   petition    for
    adjudication/proposed distribution in which he claimed fees in the amount of
    $19,649.73.      Orphans’ Court Opinion, 6/23/17, at 2.          Finally, Appellant
    concedes that he also filed an Inheritance Tax Return in which he claimed a
    commission of $20,160.       
    Id. at 14.
       Based on this record, Appellant paid
    himself $4,444.25 for his services as POA, and claimed fees in the amount of
    $19,649.73 and a commission of $20,160 for a total of $44,250.98.
    Accordingly, we find no error in the orphan’s court’s determination that
    Appellant seeks fees and commissions in excess of $44,000. Thus, his third
    issue warrants no relief.
    In his final issue, Appellant contends that there was no evidence to
    support his removal as executor under section 3182. Instead, he claims that
    the evidence merely supports a finding of animosity amongst the parties,
    which is not a basis for his removal.         Appellant argues that at all times
    relevant hereto, he relied upon the good faith opinion of counsel.
    Appellant’s brief at 11.
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    The record supports the orphans’ court’s determination that Appellant
    wasted and mismanaged the Estate’s property and comingled Decedent’s
    funds with his own. Thus, we find no error in the orphans’ court’s conclusion
    that his continued involvement as executor would likely jeopardize the
    Estate.   For the reasons expressed above, we affirm the orphans’ court’s
    determination that Appellant’s removal as executor of the Estate was
    warranted under section 3182.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/25/2018
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Document Info

Docket Number: 1060 WDA 2017

Filed Date: 9/25/2018

Precedential Status: Precedential

Modified Date: 9/25/2018