J-A16032-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: ESTATE OF BURLA H. 

RICKERSON, DECEASED 

IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 

APPEAL OF: BERNARD J. HESSLEY, ESQ. No. 1256 WDA 2015 

Appeal from the Order Dated June 24, 2015, 

in the Court of Common Pleas of Warren County, Orphans’ Court, 

at No(s): OC 35 of 2014 

BEFORE: SHOGAN, OLSON, and STRASSBURGER*, JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 07, 2016 

 Bernard J. Hessley, Esquire (Hessley) appeals from the order entered 

June 24, 2015, in the Court of Common Pleas of Warren County, which 

reduced Hessley’s attorney fee for the administration of the Estate of Burla 

Rickerson (the Estate). We affirm.1 

 

* Retired Senior Judge assigned to the Superior Court. 

1

 Also before us is a Motion to Quash filed by Donna L. Rickerson 

(Rickerson), as Appellee and lifetime beneficiary of the trust established by 

the Estate. Rickerson avers that the June 24, 2015 order was a partial 

accounting and therefore not appealable. Additionally, Rickerson asserts the 

issues presented were not properly preserved because no exceptions were 

filed. Lastly, Rickerson contends Hessley’s attempt to argue against the 

reduction in the executor’s fee was (1) improper, because Hessley did not 

represent the executor, and (2) moot, because the Executor had already 

reimbursed the Estate. 

On November 25, 2015, this Court granted Rickerson’s motion in part, 

quashing the appeal as to the reduction of the executor’s fee. This Court 

denied the motion without prejudice in all other respects, and permitted 

Rickerson to raise the issue before this panel. Rickerson has not renewed 

her objection; regardless, the order is appealable and Hessley’s failure to file 

exceptions was not fatal to this appeal. See Pa.R.A.P. 342, Notes 

(“Subdivision (a)(1) provides that the adjudication of any account, even an 
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 Burla Rickerson (Decedent) died on June 26, 2009. Her will, dated 

November 24, 1977, was admitted to probate and John Hennessy (the 

Executor) was appointed executor of the Estate. Orphans’ Court 

Memorandum Opinion and Order, 6/24/2015, at 1 (unnumbered). Hessley 

was retained to represent the Estate. Id. Hessley and the Executor worked 

together on matters involving the Estate, and in October 2010, the Estate 

paid fees to the Executor of $8,400 and to Hessley of $8,600. The Executor 

died on July 6, 2014. Id. 

 Subsequent to the Executor’s death, “[on] November 25, 2014, 

[Hessley] filed what purported to be a ‘First and Final Account of Joseph 

Hennessy, Administrator for the Estate of John Hennessy, deceased, 

Executor of the Estate of Burla H. Rickerson, deceased [(Account)].’” Id. at 

2. Rickerson filed objections to the Account, which included, inter alia, an 

objection to the fees paid by the Estate to the Executor and Hessley. A 

hearing was held on June 22, 2015. 

Following the hearing, the orphans’ court disapproved the fees paid to 

the Executor and Hessley. Specifically, the court concluded that Hessley’s 

fee in the amount of $8,600 was excessive because “no time records were 

introduced to indicate the time involved in representing the [E]state; 

 

interim or partial account, is appealable. Previously, only the adjudication of 

the final account would have been appealable as a final order under Rule 

341. The prior limitation has proven unworkable for estate administration 

taking years and trusts established for generations during which interim and 

partial accounts may be adjudicated and confirmed.”). See also, Pa.R.O.C. 

7.1 (providing that exceptions may be filed but are not required).
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because certain actions taken by counsel were detrimental to the [E]state 

proceedings []; and because the fee was excessive [for] the assets included 

in the [E]state filings and the work completed.” Id. The orphans’ court 

approved an executor fee and estate attorney fee of $2,000 each, and 

ordered that the Estate be reimbursed within thirty days. Id. 

On July 23, 2015, Hessley filed a motion for reconsideration.2 This 

timely-filed appeal followed. Hessley raises three issues for this Court’s 

consideration, all of which contest the orphans’ court’s reduction of Hessley’s 

attorney fee. See Appellant’s Brief at 14. We review these issues mindful 

of the following standard. 

Our scope of review of a decree or order entered by the 

[o]rphans’ [c]ourt is extremely limited. We will modify a decree 

only if it is not supported by competent or adequate evidence, if 

an error of law has been committed, or if the [orphans’ court] 

abused its discretion or capriciously disbelieved credible or 

competent evidence. 

In re Sweeney, 695 A.2d 426, 428 (Pa. Super. 1997)(quoting In re Estate 

of Maljovec, 602 A.2d 1317, 1319 (Pa. Super. 1991)). “Fixing the amount 

of compensation is peculiarly within the discretion of the court below, which 

in most cases is better able to judge as to the reasonableness of such 

charges than the appellate court. Unless such discretion is clearly abused the 

judgment of the court below will not be disturbed.” In re Strickler's 

Estate, 47 A.2d 134, 135 (Pa. 1946). 

 

2

 The orphans’ court did not address Hessley’s motion before he filed his 

appeal. 
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 The orphans’ court offered the following reasoning for reducing 

Hessley’s counsel fees. Notably, the orphans’ court points out numerous 

errors that occurred throughout the administration of the Estate. 

23. No notice of the Account’s filing and no notice of the dates 

by which objections to such Account must be filed was ever 

served on the parties in interest as is required[.] 

24. No petition for adjudication or statement of proposed 

distribution was served on the parties in interest. 

25. The Account is improperly termed a “Final” Account. The 

state administration is not yet complete because there are still 

assets of the[E]state which the Executor failed to claim or 

marshal together with other [E]state assets for distribution 

pursuant to the will[.] 

26. The Account is incomplete and fails to account for the 

Executor’s administration of the Estate from the date of death, 

June 26, 2009, forward[.] 

27. The Account fails to include a $67.09 Pennsylvania 

Inheritance tax refund of overpaid taxes which should have been 

received by the Estate on or about March 21, 2011. 

28. The Account does not list in an itemized fashion all assets 

marshaled by or which came into the possession of the Executor. 

It is unclear from the Account the sources from which the assets 

came that make up the PNC Bank account balance as of 

November 12, 2010 of $34,399.95 and the “interest and other 

deposits” of $75,836.81 listed in the Account. 

29. The Account fails to separately account for principal and 

income of the Estate. 

30. The Account does not include any proof of advertisement of 

the Estate. 

31. The Account fails to include or address the [h]ouse held and 

maintained by the Executor as a part of the [E]state or the 

improper distribution thereof from the Estate to [the Executor], 
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holding himself out as Trustee of the Trust without any court 

authority to do so. 

32. The Account fails to state whether [the Executor] filed a 

Form 1041 Fiduciary Income Tax Return on behalf of the Estate 

or whether any federal income taxes due on such return were 

paid. 

33. The Account fails to state whether [the Executor] filed final 

Forms 1040 and PA-40 Income Tax Returns on behalf of the 

Decedent or whether any federal or state income taxes due on 

such returns were paid. 

34. The Account fails to state whether the [E]state was 

advertised. 

Thus the [E]state consisted of residential real [E]state, 

which was to be conveyed to a trustee, and bank accounts. The 

gross [E]state was $154,856.86. The attempted conveyance of 

the real [E]state was a fiasco. [Hessley] prepared a deed from 

the [E]xecutor to the [E]xecutor as “trustee,” when the 

[E]xecutor had not been named as trustee or alternate trustee, 

and at a time when the trustee named in the will had not 

renounced or been approved. [Hessley] did all of this without 

filing a petition asking the court's approval, thus creating a cloud 

on the real estate title. [Hessley] and [the E]xecutor failed to 

account for the liquid assets which came into their possession in 

such a manner that those interested in the [E]state could 

understand the assets. [Hessley] and [the E]xecutor failed to 

marshal all of the assets. [Hessley] and [the E]xecutor failed to 

keep the beneficiary of the [E]state informed as to the status of 

the same. In fact [Attorney Hessley] and [the E]xecutor failed 

to give the beneficiaries even the notice required by law. 

[Attorney Hessley] and [the E]xecutor failed to account for Pa. 

and federal income taxes of [D]ecedent and the [E]state. 

[Hessley] and [the E]xecutor filed the Pa. Inheritance Tax Return 

on October 29, 2010, which was late as the [D]ecedent died 

June 26, 2009, and incurred interest charges of $143.89. There 

would appear to be no excuse for this untimely filing as 

[Hessley] and [the E]xecutor had cashed the [D]ecedent’s 

certificates of deposit (incurring taxable interest income) and 

were able to pay themselves, $8400 to the executor and $8600 

to [Hessley] on October 21, 2010, prior to filing the inheritance 

tax return. [Hessley] prepared and the executor filed a Pa.O.C. 
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Rule 6.12 Final Status Report on October 29, 2010. This report 

falsely listed the [E]state as complete, and falsely represented to 

the court that an informal accounting had been made to the 

interested parties. Further, as a result of all of the improper 

actions committed by [Hessley] and the [E]xecutor, the [E]state 

and the beneficiaries have suffered considerable delays and 

additional expenses in an effort to correct the errors made. 

The [orphans’ court] did note that as a result of the 

unfortunate and untimely death of the [E]xecutor, matters 

pertaining to the administration of the [E]state were 

complicated. However, there were significant missteps taken 

regarding the handling of the [E]state by [Hessley] and the 

[E]xecutor, before his untimely death, which ultimately created 

the current predicament for the [E]state. 

Supplemental Opinion, 10/14/2015, at 8-10 (unnumbered) 

Under these circumstances, we discern no error in the orphans’ court’s 

reasoning and cannot find the court abused its discretion in reducing 

Hessley’s attorney fee. In doing so we note that the determination as to 

what constitutes a reasonable fee is within the discretion of the orphans’ 

court when considering

the character of the services rendered; the difficulty of the 

problems involved; the importance of the litigation; the amount 

of money or value of the property in question; 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. 

In re LaRocca's Trust Estate, 246 A.2d 337, 339 (Pa. 1968). Here, the 

record supports the orphans’ court’s finding that a reduction in Hessley’s fee 

was appropriate due to the improper actions and “significant missteps” taken 
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by Hessley, which caused considerable delays and additional fees to be 

incurred by the Estate.3

Accordingly, because we conclude that the orphans’ court did not 

abuse its discretion by reducing Hessley’s fee, we affirm the order of the trial 

court. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/7/2016 

 

3

 Finally, Hessley argues this case involves a surcharge, and that, therefore, 

the orphans’ court was obligated to find that Hessley acted negligently in his 

handling of the Estate. Appellant’s Brief at 19. We note that “[a] surcharge 

is a penalty imposed to compensate the beneficiaries for loss of estate 

assets due to the fiduciary’s failure to meet his duty of care.” In re Estate 

of Westin, 874 A.2d 139, 144 (Pa. Super 2005) (citations removed). A 

finding of negligence is necessary when imposing a surcharge. Id. 

After a review of the record, we find no evidence to suggest that the 

orphans’ court imposed a surcharge. To the contrary, the court ordered a 

reimbursement to the Estate, not as a penalty, but as a matter of necessity 

to effectuate the court’s order. See Memorandum Opinion and Court Order, 

6/24/2015. Upon determining that an attorney’s fee of $2,000 was more 

appropriate than the amount paid to Hessley in October 2010, it logically 

followed that Hessley would be require to reimburse the Estate for the 

difference in the amount approved from the amount originally paid. 

Consequently, this argument holds no merit.