In Re: Estate of McLeod, K. ( 2021 )

J-S01013-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF KATHRYN S. : IN THE SUPERIOR COURT OF
MCLEOD, DECEASED JOAN Y. : PENNSYLVANIA
SUMMY-LONG, INDIVIDUALLY AND :
AS AGENT FOR JANICE S. FAUST :
:
Appellant :
:
:
v. : No. 394 MDA 2020
:
:
NANCY MCLEOD O'BRIEN, :
EXECUTRIX OF DECEDENT'S ESTATE :
AND TRUSTEE OF THE KATHRYN :
MCLEOD TRUST U/A DTD 5/24/1999 :
Appeal from the Orders Entered January 30, 2020
In the Court of Common Pleas of Dauphin County Orphans' Court at
No(s): 2215-0133
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2021
Joan Y. Summy-Long appeals, pro se,1 from two orders, entered in the
Court of Common Pleas of Dauphin County, Orphans’ Court Division, on
____________________________________________
* Former Justice specially assigned to the Superior Court.
1Summy-Long purports to appeal “individually and as agent for Janice Faust,”
her sister. Although Appellants were previously represented by counsel, he
has since been permitted to withdraw his representation. See infra at 11-
15. Following counsel’s withdrawal, Summy-Long, with the leave of this
Court, filed a pro se supplemental brief. This Court has previously held that
an agent’s pro se “legal representation” of a principal under a power of
attorney is “contrary to the constitution, the laws, and the public policy of this
Commonwealth” and constitutes the unauthorized practice of law. Kohlman
v. W. Pennsylvania Hosp., 652 A.2d 849, 853 (Pa. Super. 1994).
Accordingly, to the extent that Summy-Long appears pro se in this matter, we
J-S01013-21
January 30, 2020. The first order denied Appellants’ motion for
reconsideration of an order dated May 30, 2019; the second order denied their
objections to the Second and Final Account of Nancy McLeod O’Brien,
Executrix of the Will of Kathryn S. McLeod, Deceased, and Trustee of the
Kathryn McLeod Trust Under Agreement dated May 24, 1999. After our
review, we quash the appeal from the order denying reconsideration of the
order dated May 30, 2019. We affirm, in part, and reverse, in part, the order
denying Appellants’ objections to the Second and Final Account and remand
for further proceedings.
This matter has a long and tortured history before both the Orphans’
Court and this Court. In his Pa.R.A.P. 1925(a) opinion, the Honorable John J.
McNally, III, provided a thorough recitation of the extensive factual and
procedural history of this case, which includes excerpts from a prior
memorandum decision of this Court. In the interests of judicial economy, as
well as for ease of disposition, we reproduce that portion of the Orphans’
Court’s opinion in substantial part:
The Pennsylvania Superior Court recited a portion of the early
procedural background in this matter, as follows:
Kathryn S. McLeod died testate on December 18, 2014. On
February 9, 2015, the Register of Wills [] of Dauphin County
[] probated an instrument dated February 19, 2004, as
decedent’s last will and testament and granted letters
testamentary to Nancy McLeod O’Brien [(“Executrix”)],
[decedent’s] stepdaughter. Appellants [] were decedent’s
____________________________________________
deem her to be acting only on her own behalf. However, for the sake of clarity,
we refer to “Appellants” in the plural, when appropriate.
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nieces. The residuary estate was left to the Kathryn S.
McLeod Trust dated February 19, 2004 [(“2004 Trust”)].
The [2004 Trust], which constituted a complete restatement
of a trust agreement dated July 27, 2001, was a living will
whereby [decedent] appointed herself as trustee and
retained a life estate. Upon [decedent’s] death, the settlor’s
two stepdaughters, [Executrix] and Jean McLeod Croft, were
appointed as successor co-trustees, and, after some specific
bequests, [decedent] distributed the remaining ninety
percent of the trust’s assets to the two stepdaughters.
Appellants each received five percent of the remainder of
the trust assets. [Jean McLeod Croft, who was also named
as a co-executrix under the will, declined to serve as either
co-executrix or co-trustee. As a result, Executrix serves
alone in both roles.]
After an attorney had entered an appearance on their
behalf, Appellants filed a pro se document, which was
directed to the Register of Wills and indicated that it was
being filed to “meet the required legal deadline of being
within one year of probation [sic] of the Will and is under
consultation with attorneys at this time.” There is no
indication that the document was served on [Executrix].
The filing in question did not raise any issues as to the
validity of the will or trust[,] nor did it suggest that the
decedent lacked the capacity or was unduly influenced to
execute those February 19, 2004 documents.
Instead, Appellants averred that there was tortious
interference with their inheritance, and they sought
subpoenas in order to obtain answers to “questions
regarding the entirety of [decedent’s] assets” as well as the
disposition of assets held in 1992, 1997, and 1999 trusts
created by the decedent. On March 9, 2016, the orphans’
court dismissed the untitled document.
On March 17, 2016, counsel for Appellants filed a Petition to
Contest Probated Will and Trust Agreement. That petition
sought discovery to determine whether all of the decedent’s
assets had been located and whether decedent had
executed a will and trust after February 19, 2004.
Appellants also requested copies of any trusts that the
decedent executed prior to 2001.
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The executrix filed preliminary objections to the [petition],
alleging that it was untimely, did not state a cause of action
in that it did not contain any challenges to the validity of the
February 19, 2004 will and trust, and was incapable of being
answered. As to the latter averment, the executrix noted
that the [petition] referred to wills and/or trusts that were
supposedly executed after 2004, but that the document
failed to apprise her of any facts that would enable her to
locate testamentary dispositions signed after 2004. The
executrix also set forth that, even though Appellant Summy-
Long was the decedent’s [agent under a] power of attorney
for the twenty-five years preceding her death, Appellants
did not list any assets that should have been, but were not,
included in either the trust corpus or the estate.
After Appellants filed preliminary objections to the
executrix’s preliminary objections, the orphans’ court
entertained oral argument on October 17, 2016. On
November 3, 2016, it dismissed Appellants’ preliminary
objections, granted the executrix’s preliminary objections,
and dismissed with prejudice Appellants’ [petition]. The
orphans’ court concluded that the appeal from probate was
untimely under 20 Pa.C.S. § 908(a), . . . and that the
petition failed to state a claim that actually contested the
validity of the will or trust.
Estate of McLeod[, 1960 MDA 2016 at 1-4 (Pa. Super. filed July
31, 2017) (unpublished memorandum decision)].
Following issuance of the order by the Hon[orable] Lori Serratelli,
dismissing their preliminary objections, [Appellants] filed their
appeal to the Superior Court. The primary issue presented was
whether Appellants had adequately asserted a fraud exception
which would allow them to challenge the validity of the will and/or
trust beyond the one-year statute of limitations permitted for an
appeal from the probate of a will [under section 908]. The fraud
alleged by [Appellants] before the Superior Court “stems from the
Executrix’s failure to include between $1,000,000[ and
]$2,000,000 in assets of the Estate. This [is] based upon
petitioner Summy-Long’s personal knowledge.” The Superior
Court rejected the fraud claim because the averment “that there
is certain property owned by the decedent that has not been
included in the estate and/or trust assets . . . simply does not
raise any valid challenge to the probate of the will or the integrity
of the will or trust, much less the existence of fraud perpetrated
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on the register of wills during probate.” The Superior Court was
critical of Appellants’ decision to pursue their meritless appeal and
improperly litigate collateral issues therein, stating:
In fact, Appellants do not understand that the failure of the
executrix or the co-trustees to account for assets actually
owned by the decedent can be raised by objections to their
accounts. Appellants also have no inkling of how to conduct
discovery, which is not by means of filing an appeal from
the probate of a will. Hence, the orphans’ court did not
abuse its discretion in concluding that [section] 908 applied
and that Appellants had failed to state a valid cause of action
in their [petition].
Id. [at 7 (emphasis in original)].
On November 13, 2017, following the Superior Court’s decision,
the Executrix and her attorney completed an accounting of the
estate and 2004 Trust assets, including proposed distributions
[(collectively, “Accounts”)]. The [Accounts] were served on all
interested parties and scheduled for audit on January 3, 2018.
The petition for adjudication/statement of proposed distribution
filed with the [Accounts] stated that the issues in the case involved
distribution of the trust principal and termination thereof,
discharge of the trustee and resolution of the issues listed in the
rider, which included a statement by the estate that it intended to
impose attorneys’ fees [on Appellants], reasoning as follows:
[Rider: Question 14]
At the time of decedent’s death, [Joan Summy-Long] was
serving under decedent’s power of attorney and also
produced to the [executrix] of the estate the will of the
decedent[,] which was duly admitted to probate.
Ms. Long claimed that there was another will of the decedent
and other assets than those which were probated. Counsel
for the [executrix] took the necessary steps and no other
assets nor another will has been found. Nevertheless, Ms.
Long has caused the estate and trust to incur substantial
legal fees and costs in raising the same issues before the
Orphans’ Court Division of Dauphin County and, after being
unsuccessful there, the Superior Court of Pennsylvania[,]
where she was also unsuccessful.
...
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[Ms. Long] has also refused to sign a receipt and release
agreement[,] which would have saved the expense and time
of this proceeding. Accordingly, it seems only fair and
proper that the costs of litigation, being legal fees and court
costs[,] be charged in whole or in part to the shares now
available for distribution to Ms. Long, individually and as
attorney-in-fact.
The estate [stated] that it had incurred counsel fees of $156,002
and $43,345.50, respectively, or a total of $199,347.68 [sic] for
the period from December 18, 2014 through October 31, 2017.
On January 16, 2018, [Appellants] filed objections to the
Accounts. Also filed that same day was an entry of appearance of
a new attorney for [Appellants], Ronald Finck[, Esquire].
[Appellants’] primary claims centered around Joan Summy-Long’s
belief that that the decedent might have established another trust
during her lifetime besides the probated 2004 Trust, the ultimate
disposition of which was unknown to her and [under which] she
and her sister might be beneficiaries. [] Summy-Long also
suggested that assets from other trusts might have been
improperly co-mingled in the 2004 Trust when they should have
remained separate for the sole benefit of [Appellants]. She
asserted that the executrix refused to provide her with complete
copies of the trust agreements dated 1993, 1997, 1999 and 2001.
She also sought copies of decedent’s account statement from the
corporate trustees through which the various trusts were created,
including the Hershey Trust Company and Edward Jones, which
[Summy-Long] claimed she needed to determine whether the
[Appellants] would be receiving that to which they were entitled.
Appellants raised six specific objections. The first and sixth were
general objections to the [Accounts], reiterating the incomplete
document history allegedly rendering the asset picture incomplete
and suggesting executrix breached her fiduciary duty by failing to
identify assets of the estate or improperly designated as assets of
the estate assets of some other trust. These objections were
raised “under the premise that it is appropriate for [the executrix]
to proceed with the production of various statement, copies of the
various trust documents, and other information through discovery
proceedings, and to then reconcile the various entries on the
[Accounts].” [Appellants] objected to any proposed distribution
premised upon missing information that may not reconcile with
the estate and the trust(s).
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[Appellants] raised in the second objection that they believed
decedent had an investment account with BNY Mellon which, on
December 31, 2009, was claimed to have a value of $2,565,000
and that this account had been titled to the 1999 trust.
[Appellants] had been unable to determine its disposition.
[Appellants’] third objection was that the executrix failed to
distribute two pieces of heirloom jewelry bequeathed to Joan
Summy-Long under the 2004 will []. Both pieces were missing
from decedent’s belongings and the estate had submitted
insurance claims for the loss.
In [their] fourth objection, [Appellants] sought reimbursement of
$2,887.47 for expenses incurred clearing out items [for them]
from decedent’s last residence.
In the fifth objection, [Appellants] disputed the executrix’s
proposal to charge attorneys’ fees totaling $199,347.68 against
their distribution. They also objected to the reasonableness of the
fees. [Summy-Long] disputed the executrix’s characterization
that [Appellants’] prior litigation contesting probate was baseless
and unnecessarily costly. [Appellants] also disputed that they
caused unnecessary counsel fees by failing to agree to a release.
[The] court thereafter issued a number of case management
orders[,] including a discovery deadline of June 30, 2018. During
this time, while the objections were pending, executrix’s attorney
conferred with the Hershey Trust Company regarding decedent’s
assets[,] even though he believed that the documents sought by
[Appellants] were irrelevant. On April 25, 2018, he provided
[Attorney Finck] with a letter from the Hershey Trust Company
confirming there were no trusts . . . that were not previously
known or disclosed. Thereafter, executrix’s attorney obtained
from the archives of the Hershey Trust Company complete copies
of the 1999 will and trust, and the 1997 trust, which were sent to
Attorney Finck.
On October 26, 2018, Attorney Finck filed a petition to withdraw
from representation of [Appellants] because he and Joan Summy-
Long had “reached an irreconcilable impasse regarding case
strategy.” On November 19, 2018, Summy-Long filed a lengthy
response objecting to the petition to withdraw. In it, she
characterized her attorney as refusing to investigate fraud in the
[Account]. She claimed that the impasse arose because Attorney
Finck, without explanation, refused to depose a Hershey Trust
Company officer whom she believed had detailed knowledge of
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the wills and trusts executed by decedent under the trust officer’s
co-direction with decedent’s attorney. She believed a deposition
would reveal that decedent’s attorney had concealed documents
necessary to validate the veracity of the [Accounts].
On November 26, 2018, [the] court granted Attorney Finck
permission to withdraw and stayed all proceedings for sixty days
to allow Joan Summy-Long to procure new counsel. She chose
not to do so, however, and entered her appearance as a self-
represented litigant on January 28, 2019. [The] court thereafter
scheduled a hearing on the objections to the [Accounts] for May
16, 2019.
On April 26, 2019, executrix filed a motion in limine seeking to
exclude from the hearing, on irrelevancy grounds, any and all
estate planning documents predating the 2004 will and 2004
[T]rust. The motion noted that the recent discovery revealed
there were no trusts discovered not previously known or disclosed
and that executrix’s attorney had provided this additional proof to
Attorney Finck. Executrix additionally noted that [Appellants] had
failed to produce any documents relating to allegedly missing or
improperly assigned assets.
Executrix specifically argued that earlier wills and trusts were not
relevant to the disposition of assets through the 2004 trust
agreement because that trust was, on its face, the governing
document, based upon the following record: (a) that the 2004
trust lineage established that it was an amendment and
continuation of the line of trust referenced by the [Appellants]
from 1993 to 2004[;] (b) that the Superior Court specifically held
that the 2004 will and the 2004 [T]rust govern the disposition of
decedent’s assets[;] and (c) that the 2004 [T]rust specifically
identifies the trust property as annexed in Schedule A, which
identifies an Edward Jones account ending in 4118, the account
listed in the executrix’s [Accounts] for probate.
...
[] Executrix argued that the 2004 [T]rust defined the scope of its
assets. Any prior trust documents, which were specifically
amended and restated and rendered nullities by the 2004 trust
agreement, would not tend to prove or disprove whether any
assets are missing from the 2004 [T]rust, or whether any assets
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in the 2004 [T]rust belong to any person or entity other than the
estate or the 2004 [T]rust.
In [their] response to the motion in limine, [Appellants] disputed
that the executrix had accounted for all assets but[,] instead[,]
had actively concealed estate documents including the 2001 trust,
preventing them access to important evidence that could
contradict or challenge the proposed [Accounts,] including
exposing possible fraud.
[Following argument, the court granted executrix’s motion in
limine, holding it would only consider the 2004 will and trust in
determining the estate distribution. A hearing on Appellants’
objections followed, at which Appellants presented no witnesses
or documentary evidence,] but argued the same issues [] raised
in [the] pleadings.
...
On May 30, 2019, [the] court entered an order approving the
account, denying the objections . . ., and granting the
accountant’s petition for adjudication. With regard to
[Appellants’] primary complaint, set forth in [the] first and sixth
objections, in which [they] claimed the executrix breached her
fiduciary duty by failing to identify assets or improperly designated
as assets of the estate assets of some other trust, [the] court
found “that the estate has made trust documents, statements[,]
and other information sought by [Appellants] available to [them].
The court finds that distribution of principal and income that have
been made have been for the direct benefit of the decedent’s
estate.” The court also found, as to the second objection, that the
estate made a complete and proper accounting of the BNY Mellon
account.
Determinatively, [Appellants] failed to file an appeal within thirty
days from the issuance of the May 30, 2019 order, which [they
were] required to do to avoid waiver of the issues litigated. The
next docket activity in this matter occurred [on] November 11,
2019, when Executrix filed her Second and Final Accountings with
Petition for Adjudication and Statement of Proposed Distribution.
The Second [Accounts] covered the period from November 1,
2017 through August 28, 2019, and addressed new items
including the proposed distribution of additional bonds that had
since been discovered. It also reflected the imposition of
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attorneys’ fees against [Appellants,] as had been approved by the
court in its May 30, 2019 order. Under the proposed distribution,
the 5% shares due [Appellants], of $115,934.43 each, were
applied to attorneys’ fees. The Second [Accounts] showed that
the estate had incurred $181,236.11 in counsel fees for the
second accounting period, which was in addition to the estate’s
counsel fees for the first accounting period, of $199,347.68.
On December 27, 2019, [Appellants] filed a “Motion for
Reconsideration of Objections to First and Final Trust and Account
Order,” specifically requesting that the court reconsider the May
30, 2019 order approving the account and denying the
[Appellants’] objections. On December 31, 2019, [Appellants]
filed objections to the Second [Accounts]. Joan Summy-Long,
who filed the motion and objections, was still self-represented.
In the motion for reconsideration, [Appellants] raised three
issues[.] First, they sought that the court revisit the issue of
whether the estate was forthright when it claimed it was not in
possession of one of the rings bequeathed to Joan Summy-Long.
They suggested new evidence had been discovered showing the
estate was falsely claiming it lacked possession. Second, they
also again accused Executrix of breach of fiduciary duty in [her]
administration of the 2004 Trust and that additional assets were
due to [Appellants] inasmuch as the 1999 trust, created in their
favor, had been “co-opted” into the 2004 Trust. They took
particular issue with the fact that the estate had not provided a
copy of the 2001 trust and that a 1999 revision to a will had been
concealed. Third, [Appellants] argued that the estate failed to
adequately search for unclaimed property owned by Decedent[,]
which was allegedly known to the estate to exist in 2015[,]
including a life insurance policy and two other items. Summy-
Long asserted that recent searches she undertook (in late 2019)
revealed the existence of this property and that the executrix
breached her fiduciary duty by failing to include them in the estate
assets.
In the objections to the Second [Accounts], [Appellants]
continued to raise issues with the trusts[,] including that the 2004
Trust was deficient because it was unfunded according to Edward
Jones account documents and that the 2004 Trust improperly co-
opted the 1999 trust. [Appellants] again accused Executrix of
concealing documents and allowing [Appellants’] inheritance to be
taken away from them. [Appellants] also objected to the
imposition of attorneys’ fees. Finally, [Appellants] argued that
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Joan Summy-Long should have received the appraised value of
the missing jewelry (rings) she was bequeathed instead of the
insurance claim value. Notably, the objections raised no new
arguments directed solely at the Second [Accounts], to which the
objections purported to object.
On January 22, 2020, the Executrix filed preliminary objections to
both of [Appellants’] filings[,] arguing that all issues raised were
a rehashing of issues previously raised in the first set of objections
and which were finally resolved by this court in its May 30, 2019
order. Inasmuch as no new issues have been raised, and because
any attack on the old issues had to be raised within thirty days
from the issuance of the May 30 order, all issues were waived and
this court lacked jurisdiction to [consider] them.
On January 30, 2020, this court issued two orders from which
[Appellants] currently appeal. The first denied reconsideration[,]
stating that “[Appellants have] failed to present facts which the
court did not gather during the hearing on objections or law that
the court did not consider in rendering its decision.”
In the second order, this court denied the objections to the Second
[Accounts], stating that “[Appellants] simply rehashed objections
to the First [Account,] which this court has rejected and further
objects to counsel fees charged to the estate, the cost of which
are, in part, attributable to [Appellants’] own filings.” On February
25, 2020, [Appellants] filed a timely appeal from both orders
issued January 30, 2020. Following [Appellants’] filing of their
notice of appeal, a third attorney entered his appearance on their
behalf and filed a [Pa.R.A.P. 1925(b) concise] statement of errors
complained of on appeal.
Orphans’ Court Opinion, 5/15/20, at 1-11 (footnotes, citations to record, and
unnecessary capitalization omitted).
On March 20, 2020, Norman Perlberger, Esquire, entered his
appearance in this Court on Appellants’ behalf. On June 10, 2020, Attorney
Perlberger filed a motion to withdraw from his representation of Appellants,
stating that he had “reached a professional impasse with [Summy-Long], and
. . . that all attempts to resolve or remove said impediment have failed.”
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Motion to Withdraw, 6/10/20, at ¶ 8. On June 10, 2020, Summy-Long filed a
pro se document styled “Answer to the Motion for Leave to Withdraw and for
Extension of Time with Request for Documents and Counsel Compromise,” in
which she disputed numerous averments made in counsel’s motion and
asserted that “withdrawal of [c]ounsel at this stage makes it virtually
impossible to find another attorney to represent the Appellate [sic] that is
essential to complete the [c]ase.” Answer to Motion to Withdraw, 6/10/20, at
¶ 6. On June 22, 2020, Attorney Perlberger filed a “Sur-Reply to Appellant’s
Answer to Motion for Leave to Withdraw and for Extension of Time,” in which
he disputed certain claims made by Summy-Long in her answer and “rest[ed]
on the [m]otion pending before the Court.” Counsel’s Sur-Reply, 6/22/20, at
[2]. On June 29, 2020, Summy-Long filed an answer to counsel’s sur-reply.
On July 6, 2020, this Court issued a per curiam Order, denying counsel’s
motion without prejudice to his ability to seek relief in the trial court and
granting Summy-Long an extension of time, until July 29, 2020, to file a brief
and reproduced record. See Order, 7/6/20.
On July 6, 2020, Attorney Perlberger filed an “Ex Parte Motion for
Reconsideration/Clarification of July 6, 2020 Ruling Re: Motion for Leave to
Withdraw and for Extension of Time.”2 In that motion, Attorney Perlberger
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2 Counsel averred that he filed his motion for reconsideration ex parte so as
not to prejudice his client by “serving opposing counsel with [the m]otion, or
. . . providing Appellee with any damaging allegations” regarding Appellant.
Ex Parte Motion for Reconsideration, 7/6/20, at ¶ 4. However, counsel stated
that opposing counsel did not oppose his withdrawal. See id.
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noted that he had been retained solely for purposes of representing Appellants
on appeal and had not been involved in the Orphans’ Court proceedings. Thus,
he requested “clarification of why a motion in the court below would have any
bearing on [his] duties . . . to this Court as [c]ounsel on appeal.” Ex Parte
Motion for Reconsideration, 7/6/20, at ¶ 3.B. Attorney Perlberger further
averred that:
Communications with [Summy-Long] to limit the grounds of
appeal to a single issue which [counsel] believed had been
preserved failed, and [Summy-Long’s] insistence that [counsel]
proceed with the filing of the [b]rief and [r]eproduced [r]ecord on
all issues, created an irreconcilable conflict, which [counsel]
determined under the Rules of Professional Conduct precluded
further representation before this Court.
Id. at ¶ 3.D (emphasis in original). Summy-Long filed a pro se response to
counsel’s motion for reconsideration on July 15, 2020. On July 20, 2020,
counsel filed a motion requesting an extension of time to file the Appellants’
brief, as his motion for reconsideration had not been ruled upon, and his
motion to withdraw—filed in the trial court pursuant to the July 6, 2020 order
of this Court—remained pending. See Motion for Continuance, 7/20/20, at ¶
3.
Subsequently, on July 27, 2020, counsel filed a motion to withdraw his
motion for reconsideration/clarification, stating that he “is now prepared and
intending to file [a b]rief and [d]esignated [r]eproduced [r]ecord by the
deadline of this Court, i.e., July 29, 2020.” Application to Withdraw Filing,
7/27/20, at ¶ 2. That same day, counsel also filed an “Application to Amend
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Motion for Continuance,” in which he advised this Court that Summy-Long had
responded to his motion to withdraw filed in the trial court, and that the trial
court would be scheduling a hearing on the motion “in due course.”
Application to Withdraw Filing, 7/27/20, at ¶ 3. Accordingly, counsel
requested that this Court amend its briefing schedule to allow Summy-Long a
period of 45 to 60 days from the entry of an order in the trial court to file her
appellate brief. See id. at ¶ 4. By per curiam Order dated July 28, 2020, this
Court granted counsel’s motion to withdraw his motion for
reconsideration/clarification and gave Summy-Long until September 28, 2020
to file her brief and reproduced record.
Attorney Perlberger filed a brief and reproduced record for Appellants
on July 28, 2020. In the brief, counsel raised a single issue related to the
Orphans’ Court assessment of counsel fees against the Appellants’
inheritance. Counsel stated as follows:
Although the [Rule 1925(b)] statement raised five issues, after
reviewing the complete record, including the transcript of the May
16, 2019 hearing, the motion in limine (& responsive papers) and
order of May 16, 2019 (none of which had been provided to
undersigned counsel when he undertook representation), the
Rules of Professional Conduct [(]i.e., Rules 1.16(a)(1) & (a)(4),
and Rule 3.3) dictate that only a single issue addressed in this
brief had not been waived and precluded by the failure of
Appellants to appeal from the May 2019 orders. With respect to
Rule 1.16, undersigned counsel was denied a motion to withdraw;
and thus, the submission of this brief on the single issue presented
comports with undersigned counsel’s professional responsibilities
of candor toward the tribunal. Furthermore, the failure to file a
timely appeal or receive leave of court to extend said period, does
not permit the prosecution of issues by way of a concise statement
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of issues complained of on appeal, not preserved thereby.
Pa.R.A.P. 342.
Brief of Appellants, at 3 n.1 (unnecessary capitalization omitted).
On August 13, 2020, the Orphans’ Court granted Attorney Perlberger’s
motion to withdraw, finding that counsel had “set forth more than sufficient
evidence to support his claim that he and [Summy-Long] have reached a
professional impasse, and such is an impediment to his continued
representation.” Orphans’ Court Order, 8/13/20, at 1. In light of the Orphans’
Court’s ruling, on August 14, 2020, Attorney Perlberger filed an application in
this Court, renewing his request to withdraw from his representation of
Appellants.
Also on August 14, 2020, Summy-Long filed a pro se application for
relief, requesting that this Court order Attorney Perlberger to file an amended
brief including all five claims originally raised in Appellants’ Rule 1925(b)
statement. Attorney Perlberger responded that same day, requesting that the
motion be denied on the basis that the raising of unpreserved issues would be
a violation of his ethical responsibilities. On August 21, 2020, this Court issued
a per curiam order granting counsel’s motion to withdraw, directing Summy-
Long to notify this Court of her intention to retain new counsel or represent
herself on appeal, and giving Summy-Long until September 28, 2020 to file a
supplemental brief either pro se or through newly-acquired counsel.
On August 24, 2020, Summy-Long filed a pro se response to Attorney
Perlberger’s response to her August 14, 2020 application requesting that
counsel be ordered to brief all issues raised in Appellants’ Rule 1925(b)
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statement, as well as an answer to counsel’s renewed motion to withdraw.
On August 27, 2020, Summy-Long filed a pro se “Notification” in response to
this Court’s order of August 21, 2020, stating that:
Appellant intends to continue searching for counsel to replace Mr.
Norman Perlberger, Esq. If another counsel cannot be found,
Appellant will serve as [p]ro [s]e, although not her desire or first
intention. It is understood specialized legal counsel is necessary
for meeting the rigors and required knowledge for an appeal to
the Superior Court.
Notification, 8/27/20.
Also on August 27, 2020, Summy-Long filed a pro se “Motion for
Reconsideration and for Extension of Time,” requesting that this Court
reconsider its August 21, 2020 order granting Attorney Perlberger leave to
withdraw as counsel and further requesting an additional extension, until
December 31, 2020, to file a supplemental brief. On September 15, 2020,
this Court issued a per curiam order denying Summy-Long’s application for
reconsideration of this Court’s August 21, 2020 order and granting her an
extension of time to file a supplemental brief, either pro se or through newly-
acquired counsel, until October 28, 2020.
On September 15, 2020, Summy-Long filed yet another pro se
application for relief, styled as an “Update on Motion for Reconsideration and
for Extension of Time.” In that application, Summy-Long cited her sister’s
health problems and difficulties in retaining new counsel and requested that
her briefing deadline be “further extended for preparation of the Supplemental
Brief without legal representation which appears most likely.” Application for
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Relief, 9/15/20, at ¶ 5. By per curiam order filed October 9, 2020, this Court
denied that request, and Summy-Long filed her supplemental brief that same
day.
We begin by noting that:
Our standard of review of an orphans’ court’s decision is
deferential. When reviewing an orphans’ court decree, this Court
must determine whether the record is free from legal error and
whether the orphans’ court’s findings are supported by the record.
Because the orphans’ court sits as the finder of fact, it determines
the credibility of the witnesses and, on review, this Court will not
reverse its credibility determinations absent an abuse of
discretion. However, this Court is not bound to give the same
deference to the orphans’ court’s conclusions of law. Where the
rules of law on which the orphans’ court relied are palpably wrong
or clearly inapplicable, we will reverse the court’s decree.
Moreover, we point out that an abuse of discretion is not merely
an error of judgment. However, 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, discretion has been
abused.
In re Estate of Zeevering, 78 A.3d 1106, 1108 (Pa. Super. 2013) (citations
and quotation marks omitted).
In the brief filed on Appellants’ behalf by Attorney Perlberger, counsel
raises one issue for our review:
Did not the [Orphans’ Court] err in awarding counsel fees and
taxing [Appellants] with same, thereby virtually stripping them of
their inheritances, without any itemization of professional services
or affording [Appellants] a hearing to determine the correctness
and appropriateness of said fees?
Brief of Appellants, at 3.
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Appellants’ claim stems from the Orphans’ Court’s order dismissing their
objections to the Executrix’s Second and Final Account, which Appellants
timely appealed.3 Among numerous other objections, Appellants challenged
the second assessment of attorneys’ fees against their distributive shares of
the trust. The Orphans’ Court summarily dismissed Appellants’ objections, in
their entirety, without holding a hearing. On appeal, counsel concedes that
Appellants have waived their right to challenge the fees assessed in the First
Account because they did not appeal the court’s May 30, 2019 order
confirming that account. However, counsel takes issue with the “burdensome
and debilitating award of a second round of counsel fees” charged to the
Appellants in the Second Account. Counsel argues that there were no legal
fees attributable to actions of the Appellants during the second accounting
period and that the Orphans’ Court erred in “us[ing] the prior actions or
inactions of the [Appellants], that had been the underlying basis justifying the
first award of counsel fees, to extend as an automatic justification for
approving the second award.” Brief of Appellants, at 12. Counsel argues that
“[t]he enormity of the fees awarded on May 30, 2019 should have, at the very
least, required of the estate that it provide adequate and credible evidence of
____________________________________________
3 The Orphans’ Court order dismissing Appellants’ objections “left no
outstanding claims or parties remaining in the [] action” and is, accordingly,
appealable as a final order. In re Nadzam, 203 A.3d 215, 219 (Pa. Super.
2019). See also Pa.R.A.P. 341(b)(1) (“A final order is any order that . . .
disposes of all claims and of all parties[.]”); Pa.R.A.P. 342(a)(8) (“An appeal
may be taken as of right from the following orders of the Orphans’ Court
Division: . . . An order otherwise appealable as provided by Chapter 3 of these
rules.”).
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the incurring of nearly $200,000 [in] additional fees” and charging them to
Appellants.
Executrix argues that Appellants’ counseled brief “cites no legal
authority which would support reversing the Orphans’ Court’s decision to
approve [the] attorneys’ fees assessment against Appellants[.]” Brief of
Appellee, at 18. In addition, Executrix asserts that Appellants have waived
any challenge to the assessment of counsel fees because it was included in
the May 30, 2019 order confirming the First Account and, moreover, “although
[Appellants] challenged the fee assessment generally (and lost on that issue
following the hearing), they never challenged the reasonableness of the fees
themselves[.]” Id. at 29. Executrix claims that Appellants “identify no place
in the record where they challenged the rates or the total amount of the fees
such that [Executrix] should have produced the [supporting] invoices[.]” Id.
Finally, even if the claim is not waived, Executrix argues that the assessed
fees were
amounts the [e]state and [t]rust had previously paid to their
counsel in the hopes of resolving the issues with [Summy-Long].
The [c]ourt found that such an assessment was reasonable under
the circumstances and thus exercised its discretion to accept
[Executrix’s] evidence regarding [Appellants’] meritless litigation
and fruitless demands for information, all of which drained
hundreds of thousands of dollars of estate resources.
Id. at 36.
It is well-settled that a court “may require a party to pay another
participant’s counsel fees if the party’s conduct during the pendency of the
matter was ‘dilatory, obdurate, or vexatious [.]’” Brenckle v. Arblaster, 466
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A.2d 1075, 1078 (Pa. Super. 1983). It is equally well-established that,
whenever there is an unsuccessful attempt by a beneficiary to surcharge a
fiduciary, the latter is entitled to an allowance out of the estate to pay for
counsel fees and necessary expenditures in defending himself against the
attack. In re Francis Edward McGillick Found., 642 A.2d 467, 472 (Pa.
1994).
However, an attorney seeking compensation for services and costs has
the burden of presenting facts to support that claim. Estate of Sonovick,
541 A.2d 374, 376 (Pa. Super. 1988). The fees must be reasonable and
based on actual services provided and not some arbitrary formula. Estate of
Preston, 560 A.2d 160, 164 (Pa. Super. 1989). The primary responsibility
for determining the reasonableness of attorney fees rests with the auditing
judge. Estate of Burch, 586 A.2d 986, 987 (Pa. Super. 1991). In
determining the reasonableness of attorney fees, Pennsylvania courts
consider the following facts and factors:
the amount of work performed; the character of the services
rendered; the difficulty of the problems involved; the importance
of the litigation; the degree of responsibility incurred; whether the
fund involved was ‘created’ by the attorney; the professional skill
and standing of the attorney in his profession; the results he was
able to obtain; the ability of the client to pay a reasonable fee for
the services rendered; and, very importantly, the amount of
money or the value of the property in question.
LaRocca Estate, 246 A.2d 337, 339 (Pa. 1968).
Here, the Executrix is correct that Appellants have waived their right to
challenge the fees that were assessed in the First Account and were
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attributable to their frivolous and unreasonable conduct regarding the lineage
of the trusts, allegedly unaccounted-for assets, and other unfounded
accusations directed to the Executrix. The Orphans’ Court made that
determination in its May 30, 2019 order confirming Executrix’s First Account,
from which the Appellants did not appeal. See Pa.R.A.P. 342(a) (order
confirming account, or authorizing or directing distribution from estate or trust
appealable as of right); see also Pa.R.A.P. 342(c) (failure to challenge
immediately appealable order constitutes waiver of all objections to that
order; such objections may not be raised in subsequent appeal).
However, to the extent that Appellants challenge the amount of fees
assessed against their distributive shares in the Second Account, we find that
Appellants properly preserved that claim by raising it in their objections to the
account and in their Rule 1925(b) statement. Specifically, in their pro se
objections, Appellants specifically raised the issue of excessiveness as follows:
(1) by “object[ing] to having their inheritance taken from them without charge
to the McLeod family to pay for huge attorneys’ fees totaling $231,868.86;”
(2) by asserting that they had been “charged $115,934.43 each for excessive
attorneys[’] fees;” and (3) by asserting that “the $231,868.86 [in attorneys’
fees] being charged by the [e]state is huge compared with approximately
$80,000 paid by [p]ro [s]e [litigants] for legal representation.” Objections to
Second Account, 12/31/19, at 4, 5 (unnecessary capitalization omitted). Read
together, we find these assertions raise a colorable claim that Appellants were
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charged excessive fees, some of which may not have been attributable to their
conduct.4
While we understand and even sympathize with the Orphans’ Court’s
frustration with the conduct of the Appellants in this matter, where a claim is
properly and timely raised by a litigant, due process requires a meaningful
opportunity to be heard in a proceeding before a tribunal having jurisdiction
of the cause. Com. Dep’t of Transp., Bureau of Driver Licensing v.
Clayton, 684 A.2d 1060, 1064 (Pa. 1996). Here, Appellants timely challenged
as excessive the fees assessed against their distributive shares and it was
incumbent upon the court to require the Executrix to provide evidence
substantiating those fees. Estate of Sonovick, supra. Accordingly, we are
constrained to vacate the order dismissing Appellants’ objections to the extent
those objections asserted the excessiveness of the counsel fees assessed
against Appellants’ distributive shares, and we direct the Orphans’ Court to
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4 Appellants also preserved the claim as follows in their Rule 1925(b)
statement:
The [Orphans’ Court] erred in charging [Appellants] (and not the
McLeods) with grossly excessive counsel fees for both estate
administration and litigation, thereby stripping them of even the
small fractional shares of the estate that were bequeathed in the
unsupported instruments accepted by the court. Compounding
this erroneous charge, only the McLeod sisters were reimbursed
for so-called unused attorney[s’] fees.
Pa.R.A.P. 1925(b) Statement, 3/18/20, at ¶ 4 (unnecessary capitalization
omitted).
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hold a hearing to determine whether the fees were reasonable and properly
attributable to Appellants’ conduct.
Appellants raise the following additional issues in their pro se
supplemental brief:
1. The [Orphans’ Court] erred in denying the motion for
reconsideration of the May 29/30, 2019 order, when
[Executrix] failed to produce (as directed by the court) the July
27, 2001 trust (2001 Trust). The court erroneously accepted
a purported letter allegedly from Decedent, without actual
reference to the 2001 Trust, which addressed the removal of a
corporate trustee from the May 25, 1999 KSM trust. Said
motion for reconsideration was denied without hearing, despite
[Executrix’s] failure to produce a material and indispensable
instrument, i.e. the 2001 Trust, even though it had been
executed at [the] time of the July 27, 2001 letter provided by
[Executrix]. In the absence of instruments that were created
and maintained, the [Orphans’ Court] failed to validate the
express references in the 2004 trust agreement which
obliquely (with no particularity) identified a purported
amend[ment] and restatement of the July 27, 2001 trust
agreement that was, without substantiation, stated as a
“continuation of the trust created by original agreement dated
July 23, 1993, which has been amended or restated from time
to time.”
2. Did not the [Orphans’ Court] err when it failed to recognize the
estate’s misrepresentation of the July 27, 2001 trust as being
the May 25, 1999 KSM trust. This misrepresentation resulted
in the erroneous approval of the first and second accounting,
and an unsupported distribution of the May 25, 1999 trust
assets[?]
3. Did not the [Orphans’ Court] err in denying objections/motion
for reconsideration, and in refusing to consider evidence
documenting the failure to fund the February 19, 2004 trust
while co-opting the May 25, 1999 KSM trust assets with
distribution according to the 2004 will and trust, relying blindly
on the unauthorized carryover of said assets in the Edward
Jones account 336-10841-1-8 identified as Schedule A only in
the 2004 [T]rust?
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4. Did not the [Orphans’ Court] err in failing in its fiduciary duty
to enforce that of the [] Executrix to provide [Appellants]
(which could not be obtained without the McLeod authorization,
being ignored when demanded) the required information
necessary to identify and collect their inherited non-probate[]
assets of the estate, including life insurance and unclaimed
property of the [Pennsylvania] state treasury department. In
this way, [Appellants] have been again deprived of their
rightful inheritance by the [Orphans’ Court] failing to enforce
the estate[,] act without favor, or discrimination, and do the
best for all beneficiaries?
Supplemental Brief of Appellants, at 12-14 (emphasis in original; unnecessary
capitalization and citations to record omitted).
We have reviewed the parties’ briefs and the record in this matter,
including this Court’s prior memorandum decision dated July 31, 2017, and
conclude that Appellants’ remaining claims, as set forth in the pro se
supplemental brief, are thoroughly and correctly disposed of in the opinion
authored by Judge McNally. Specifically, the court properly concluded that
issues related to the trust lineage and the production of documents related
thereto—encompassed in issues one through three—are waived as a result of
Appellants’ failure to timely appeal the court’s May 30, 2019 order confirming
the First Account. See Orphans’ Court Opinion, 5/15/20, at 15-17. Similarly,
the fourth and final claim, relating to allegations that the Executrix failed to
assist Appellants in identifying non-probate assets to which they were
purportedly entitled—is waived for failure to raise the issue in objections to
the First Account. See id. at 19. Because all of these issues relate to the May
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30, 2019 order, which Appellants failed to timely appeal, we quash the appeal
of the Orphans’ Court order denying reconsideration of that order.5
Order denying reconsideration quashed. Order denying objections to
Second Account affirmed in part and reversed in part. Case remanded for
further proceedings in accordance with the dictates of this Memorandum.6
Jurisdiction relinquished.
____________________________________________
5 “[A] party may request the court to reconsider any order that is final under
Pa.R.A.P. 341(b) or 342[.]” Pa.O.C.R. 8.2. See also 42 Pa.C.S.A. § 5505
(“[A] court upon notice to the parties may modify or rescind any order within
30 days after its entry . . . if no appeal from such an order has been taken or
allowed.”). “[T]he trial court may consider a motion for reconsideration only
if the motion for reconsideration is filed within thirty days of the entry of the
disputed order.” Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. 2003).
The mere filing of a motion for reconsideration, however, is insufficient to toll
the appeal period. Sass v. AmTrust Bank, 74 A.3d 1054, 1062 (Pa. Super.
2013). Moreover, an order denying a motion for reconsideration is not a final
order and, thus, not appealable. Cheathem v. Temple Univ. Hosp., 743
A.2d 518, 521 (Pa. Super. 1999).
Here, Appellants filed their motion for reconsideration of the May 30, 2019
order on December 27, 2019, more than six months after the entry of that
order. As such, their motion was patently untimely and the Orphans’ Court
lacked jurisdiction to consider it. Haines, supra. Moreover, as Appellants
did not timely appeal the order, see Pa.R.A.P. 903(a) (notice of appeal must
be filed within thirty days of entry of order), we lack jurisdiction to consider
the merits of their appeal. See Commonwealth v. Capaldi, 112 A.3d 1242,
1244 (Pa. Super. 2015) (Superior Court lacks jurisdiction to consider untimely
appeals).
6 Because Appellants were represented in this Court by counsel with respect
to the issue of the attorneys’ fees assessed against them in the Orphans’
Court, we may grant relief to both Appellants on that claim. However, we
reiterate that Summy-Long may only represent herself on a pro se basis. See
supra at n.1. Should Janice Faust wish to pursue her claim in proceedings on
remand, she must either represent herself or retain counsel to act on her
behalf.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/04/2021
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