In Re: Estate of J. Rutter Gross ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF J. RUTTER GROSS : IN THE SUPERIOR COURT OF
A/K/A JAY RUTTER GROSS A/K/A/ : PENNSYLVANIA
JAY R. GROSS :
:
:
APPEAL OF: CHRISTINE A. :
FOURHMAN AND RICHARD K. :
FOURHMAN, II :
: No. 1305 MDA 2019
Appeal from the Order Entered August 5, 2019
In the Court of Common Pleas of York County Orphans' Court at No(s):
6710-1224
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 03, 2020
Christine A. Fourhman (“Christine”)1 appeals from the order, entered in
the Court of Common Pleas of York County, dismissing her petition to remove
the administrator d.b.n.c.t.a. and appoint an independent administrator. We
affirm.
J. Rutter Gross (“Decedent”) died on August 11, 2010. In his will, he
named Christine as executrix and also devised to her two parcels of real
property (“Properties”), known as “Rock Creek” and “School House.” The
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1 Although Richard K. Fourhman, II (“Richard”), is named as a party to this
appeal, the Orphans’ Court determined that he lacked standing to seek
removal of the administrator d.b.n.c.t.a., as he is neither a beneficiary nor a
creditor of the decedent’s estate. See Trial Court Order, 8/14/18. Richard
appealed that order, but this Court quashed that appeal after Richard failed
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. See Order, 2/25/19. Accordingly, the court’s determination as to the
issue of standing is final and we, therefore, dismiss Richard as a party to this
appeal.
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residue of the estate was given in equal shares to eleven other individuals
(“Residuary Beneficiaries”).
On October 19, 2015, the Orphans’ Court removed Christine as
executrix based, inter alia, on her mismanagement of the estate. The court
appointed MacGregor J. Brillhart, Esquire, as administrator d.b.n.c.t.a. and
directed him to file an account. In his account, Attorney Brillhart requested
that Christine be surcharged for various actions and inactions during her
tenure as executrix. The Residuary Beneficiaries joined Attorney Brillhart’s
request, and sought additional surcharges. Following a hearing, the court
imposed an initial surcharge in the amount of $16,327.01 upon Christine. She
filed an appeal to this Court, which was dismissed. Following further
proceedings, the court imposed a final surcharge upon Christine in the amount
of $240,614.39, inclusive of the initial surcharge amount. The court further
directed Attorney Brillhart to “take such steps with respect to Rock Creek and
School House as may be necessary to insure such surcharged amounts
become available to properly fund the residuary estate for the benefit of all
beneficiaries of the estate.” Interim Adjudication, 2/27/18, at 28. On
February 28, 2018, the court issued an “Order Supplementing Interim
Adjudication” in which it precluded Christine from encumbering or disposing
of either property and imposed a constructive trust on both properties in favor
of the estate. Christine appealed neither of these orders.
On June 1, 2018, Attorney Brillhart filed a petition for eviction and
possession of the Properties and, on July 23, 2018, the court issued an order
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evicting Christine from the Properties. The order also authorized Attorney
Brillhart to sell the Properties to satisfy the surcharges. On August 22, 2018,
Attorney Brillhart filed a praecipe for writ of possession, which was issued on
that same date.
On September 19, 2018, Christine filed a petition to remove Attorney
Brillhart as administrator d.b.n.c.t.a. The court denied the petition on
September 21, 2018. Christine filed an appeal, which was quashed by this
Court on February 25, 2019.
Christine filed a second petition to remove Attorney Brillhart on May 31,
2019. On June 11, 2019, the York County Sheriff’s Office issued a notice of
possession scheduling Christine’s eviction from Rock Creek. The following
day, the court issued an order scheduling a hearing on Christine’s petition to
remove Attorney Brillhart. On June 18, 2019, Attorney Brillhart filed an
answer and new matter to Christine’s petition to remove, which the Residuary
Beneficiaries joined.
On June 25, 2019, Christine filed a “Petition For Stay of Issuance of Writ
of Execution [sic].” That same day, the court granted the stay, in part,
conditioned upon Christine’s monthly deposit with the Prothonotary of the sum
of $1,600.00, which the court determined to be the fair market monthly rental
value of the property. The first such deposit was to be made within three days
of the date of the order, and monthly thereafter, during the pendency of
Christine’s petition to remove Attorney Brillhart as administrator d.b.n.c.t.a.
On July 2, 2019, Christine and Richard, in his capacity as co-occupant of the
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property, filed a notice of appeal to this Court regarding the order granting
the stay.2 Christine failed to deposit the court-ordered rental payment with
the Prothonotary and, on July 5, 2019, the sheriff again issued a notice of
possession.
After a hearing held on August 5, 2019, the court denied Christine’s
petition to remove Attorney Brillhart, vacated the stay imposed by the June
25, 2019 order, and directed Attorney Brillhart to take all necessary steps to
remove the Fourhmans from the Rock Creek property and to satisfy the
surcharge imposed against Christine. On August 7, 2019, Christine filed a
timely notice of appeal of the court’s August 5, 2019 order.
Christine raises eighteen separate issues in her statement of questions
involved. However, the only question properly before this Court is whether
the Orphans’ Court abused its discretion in denying Christine’s petition to
remove the administrator d.b.n.c.t.a.3 In re Estate of Mumma, 41 A.3d 41,
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2 On January 16, 2020, this Court dismissed as moot Christine’s appeal of the
June 25, 2019 order. See Judgment Order, 1084 MDA 2019 (Pa. Super. filed
Jan. 16, 2020).
3 In her statement of questions involved, Christine raises issues regarding the
court’s conduct of the August 5, 2019 hearing and the accuracy of the
transcription thereof, alleged partiality on the part of the court, and the
historical significance of the School House property. See Statement of
Questions Involved, ¶¶ 1-[6], [14], [15]. These claims are waived for failure
to timely raise them in the trial court. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”). Christine also raises claims relating to the surcharge order issued
on February 27, 2018, as well as the July 23, 2018 order evicting her from
the Properties and granting Attorney Brillhart possession thereof. See
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49 (Pa. Super. 2012) (removal of personal representative is matter vested in
sound discretion of trial court and we disturb such determination only upon
abuse of discretion).
Section 3182 of Pennsylvania’s Probate, Estates and Fiduciaries Code
(“PEF Code”) provides that Orphans’ Courts have the “exclusive power to
remove a personal representative” when he “mismanage[s] the estate . . . or
has failed to perform any duty imposed by law” or “when, for any other
reasons, the interests of the estate are likely to be jeopardized by his
continuance in office.” 20 Pa.C.S.A. § 3182(1), (5).
In her petition to remove the administrator d.b.n.c.t.a., Christine
alleged numerous instances of “improper conduct” on the part of Attorney
Brillhart, including failure to pay estate bills, failure to have the School House
property reassessed “despite knowledge that the value of the property has
significantly decreased,” failure to properly maintain estate property, and
conflict of interest regarding the School House property. Petition to Remove,
5/31/19, at ¶ 14. Christine also alleged that Attorney Brillhart had “failed in
his responsibility to ensure that specific performance of the testaments have
been followed,” i.e., that he had not transferred the Properties to her pursuant
to the specific devises contained in the will. Id. at ¶ 19. Finally, Christine
alleged that Attorney Brillhart had “failed in his duty to dismiss the [f]ormal
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Statement of Questions Involved, at ¶¶ [9], [10], and [17]. These claims are
waived for failing to timely appeal those orders. See Pa.R.A.P. 903 (notice of
appeal required by Rule 902 shall be filed within 30 days after entry of order
from which appeal taken).
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[a]ttorney of [r]ecord, Scott Harper, which has resulted in significant
monetary and collateral damage” to Christine. Id. at 20.
At the hearing on her petition to remove, Christine presented testimony
from her son, Michael S. Fourhman, and her husband, Richard. Both
witnesses testified that Attorney Brillhart had paid certain estate bills
untimely, which resulted in the assessment of penalties and fines against the
estate. They also testified that Attorney Brillhart had neglected the School
House property, and failed to have that property reassessed based on an
updated appraisal in order to save the estate money in taxes. Christine
presented no documentary evidence in support of her claims.
In response, the Residuary Beneficiaries presented the testimony of
Attorney Brillhart. He testified that sewer bills for the Properties had been
sent to Christine, who did not forward them to him. He stated that he paid
the bills and updated the mailing address immediately upon finding out about
them and testified that the bills were current as of the date of the hearing.
See N.T. Hearing, 8/5/19, at 46. Regarding the reassessment of the School
House property, Attorney Brillhart testified that he had an appraisal performed
in February 2019, which showed a value of $81,000.00. That value actually
represented a 10% increase in value since the prior appraisal, performed
during Christine’s tenure as executrix in 2011. See id. at 51. Attorney
Brillhart testified that he did not seek a reassessment of the property—which
he calculated would have saved the estate $1,200.00 annually—because both
of the Properties were to be sold to satisfy the surcharge levied against
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Christine by the court. He further stated that the only reason the Properties
had yet to be sold was because the Fourhmans continued to live in them,
despite Attorney Brillhart’s repeated court-sanctioned efforts to evict them.
See id. at 52-53.
With respect to the alleged damage to the School House property,
Attorney Brillhart testified that he asked Christine for the keys to the property,
but she “refused [his] request, stating that she received the [P]roperties under
the will.” Id. at 55. Attorney Brillhart was thus denied access to the School
House property until he ultimately resorted to hiring a locksmith to change
the locks. See id. at 55-56. As to Christine’s allegation that he has a
“personal interest” in the estate, Attorney Brillhart testified that he had no
such interest and that he had nothing to gain by the sale of the Properties.
See id. at 56. (“Q: You don’t stand to gain any money by sale or leveling
[the property] or anything of that nature? A: In fact, I would cease to be
paid if they would vacate the property.”). With regard to Christine’s claim that
he had failed to distribute her specific devises under the will, Attorney Brillhart
testified that the court had directed the Properties be sold to satisfy Christine’s
surcharge. As to his alleged failure to discharge Attorney Harper, Attorney
Brillhart testified that Christine had employed Attorney Harper during her
tenure as executor and that any damages she claims to have sustained would
be between her and Attorney Harper. See id. at 57. Finally, Attorney Brillhart
testified that the School House property was in poor condition when he took
over as administrator and he “made a judgment call that, given the value of
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the property, . . . it wasn’t beneficial to the [Residuary Beneficiaries] to expend
. . . residuary dollars to improve an asset that was in poor condition.” Id. at
58. He stated that he was seeking the highest possible sale price and that he
had two potential interested buyers. See id.
At the conclusion of the hearing, the court engaged in the following
exchange with Christine:
THE COURT: . . . Here[ are] the grounds for removal. There is
only one ground for removal that applies to this case, and it’s a
very heavy burden. You have the burden to prove that [Attorney]
Brillhart has been wasting or mismanaging the estate, or that the
estate is likely to become insolvent, or he has failed to perform a
duty imposed by law.
Please confine your [closing] statement to what you believe you
have proven here today to justify the [c]ourt finding that
[Attorney] Brillhart has wasted or mismanaged the estate, that
the estate is likely to become insolvent, or that he has failed to
perform a duty imposed by law.
[CHRISTINE]: I don’t have an answer for that at this time, Your
Honor.
THE COURT: Then I think we are adjourned, and the motion needs
to be dismissed because you haven’t proven your case, and you
just acknowledged it here in your closing statement.
Id. at 68-69.
Upon review of the testimony adduced in this matter, we can discern no
abuse of discretion on the part of the Orphans’ Court in concluding that
Christine failed to satisfy her burden to demonstrate grounds for removal
under section 3182 of the PEF Code. Christine’s evidence consisted of nothing
more than the self-serving testimony of her son and husband, the latter of
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whom purports to be a party to this matter. Christine provided no
documentary evidence to show waste or mismanagement and, in fact,
admitted that she could not provide any justification for removal of Attorney
Brillhart under the standard set forth in section 3182. See id. Accordingly,
we affirm the Orphans’ Court dismissal of Christine’s petition to remove the
administrator d.b.n.c.t.a.
Order affirmed. Application for Relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/03/2020
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