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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, Orph ans’ 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 Warr en County, which

reduced Hessley’s attorney fee for the administrati on of the Estate of Burla

Rickerson (the Estate). We affirm. 1

* Retired Senior Judge assigned to the Superior Cou rt.

1 Also before us is a Motion to Quash filed by Donna L. Rickerson (Rickerson), as Appellee and lifetime beneficiary o f the trust established by the Estate. Rickerson avers that the June 24, 2015 order was a partial accounting and therefore not appealable. Additiona lly, Rickerson asserts the issues presented were not properly preserved becaus e no exceptions were filed. Lastly, Rickerson contends Hessley’s attemp t to argue against the reduction in the executor’s fee was (1) improper, b ecause Hessley did not represent the executor, and (2) moot, because the E xecutor 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 exec utor’s fee. This Court denied the motion without prejudice in all other re spects, and permitted Rickerson to raise the issue before this panel. Ri ckerson 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 anJ-A16032-16

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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. Or phans’ Court

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

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

together on matters involving the Estate, and in Oc tober 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 F inal Account of Joseph

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

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

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

objection to the fees paid by the Estate to the Exe cutor and Hessley. A

hearing was held on June 22, 2015.

Following the hearing, the orphans’ court disapprov ed 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 represe nting the [E]state;

interim or partial account, is appealable. Previous ly, only the adjudication of the final account would have been appealable as a f inal 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).J-A16032-16

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because certain actions taken by counsel were detri mental 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 recons ideration. 2 This

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

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

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

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 mo dify a decree only if it is not supported by competent or adequat e evidence, if an error of law has been committed, or if the [orph ans’ court] abused its discretion or capriciously disbelieved c redible 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 t he amount

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

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

charges than the appellate court. Unless such discr etion 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 motio n before he filed his appeal.J-A16032-16

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The orphans’ court offered the following reasoning for reducing

Hessley’s counsel fees. Notably, the orphans’ cour t 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 w as ever served on the parties in interest as is required[.]

24. No petition for adjudication or statement of pr oposed distribution was served on the parties in interest.

25. The Account is improperly termed a “Final” Acco unt. The state administration is not yet complete because th ere are still assets of the[E]state which the Executor failed to claim or marshal together with other [E]state assets for dis tribution pursuant to the will[.]

26. The Account is incomplete and fails to account for the Executor’s administration of the Estate from the da te of death, June 26, 2009, forward[.]

27. The Account fails to include a $67.09 Pennsylva nia Inheritance tax refund of overpaid taxes which shou ld have been received by the Estate on or about March 21, 2011.

28. The Account does not list in an itemized fashio n all assets marshaled by or which came into the possession of t he Executor. It is unclear from the Account the sources from whi ch the assets came that make up the PNC Bank account balance as o f November 12, 2010 of $34,399.95 and the “interest a nd other deposits” of $75,836.81 listed in the Account.

29. The Account fails to separately account for pri ncipal and income of the Estate.

30. The Account does not include any proof of adver tisement 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]stat e or the improper distribution thereof from the Estate to [t he Executor],J-A16032-16

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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 Executo r] filed a Form 1041 Fiduciary Income Tax Return on behalf of the Estate or whether any federal income taxes due on such ret urn were paid.

33. The Account fails to state whether [the Executo r] filed final Forms 1040 and PA-40 Income Tax Returns on behalf o f the Decedent or whether any federal or state income tax es 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 acc ounts. The gross [E]state was $154,856.86. The attempted conv eyance 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 alterna te trustee, and at a time when the trustee named in the will ha d not renounced or been approved. [Hessley] did all of t his without filing a petition asking the court's approval, thus creating a cloud on the real estate title. [Hessley] and [the E]xec utor 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]xecuto r failed to marshal all of the assets. [Hessley] and [the E]xe cutor failed to keep the beneficiary of the [E]state informed as to the status of the same. In fact [Attorney Hessley] and [the E]xe cutor failed to give the beneficiaries even the notice required by law. [Attorney Hessley] and [the E]xecutor failed to acc ount for Pa. and federal income taxes of [D]ecedent and the [E]s tate. [Hessley] and [the E]xecutor filed the Pa. Inherita nce Tax Return on October 29, 2010, which was late as the [D]ecede nt died June 26, 2009, and incurred interest charges of $14 3.89. There would appear to be no excuse for this untimely fili ng as [Hessley] and [the E]xecutor had cashed the [D]eced ent’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 t he inheritance tax return. [Hessley] prepared and the executor fi led a Pa.O.C.J-A16032-16

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Rule 6.12 Final Status Report on October 29, 2010. This report falsely listed the [E]state as complete, and falsel y 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 de lays and additional expenses in an effort to correct the err ors made.

The [orphans’ court] did note that as a result of t he unfortunate and untimely death of the [E]xecutor, m atters pertaining to the administration of the [E]state we re complicated. However, there were significant misst eps taken regarding the handling of the [E]state by [Hessley] and the [E]xecutor, before his untimely death, which ultima tely created the current predicament for the [E]state.

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

Under these circumstances, we discern no error in t he orphans’ court’s

reasoning and cannot find the court abused its disc retion in reducing

Hessley’s attorney fee. In doing so we note that t he determination as to

what constitutes a reasonable fee is within the dis cretion of the orphans’

court when considering

the character of the services rendered; the difficu lty 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 standin g of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for t he services rendered; and, very importantly, the amount of mone y 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 “si gnificant missteps” takenJ-A16032-16

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by Hessley, which caused considerable delays and ad ditional 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 surch arge, and that, therefore, the orphans’ court was obligated to find that Hessl ey 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 beneficiarie s for loss of estate assets due to the fiduciary’s failure to meet his d uty of care.” In re Estate of Westin , 874 A.2d 139, 144 (Pa. Super 2005) (citations rem oved). A finding of negligence is necessary when imposing a surcharge. Id.

After a review of the record, we find no evidence t o suggest that the orphans’ court imposed a surcharge. To the contrar y, 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 Octo ber 2010, it logically followed that Hessley would be require to reimburse the Estate for the difference in the amount approved from the amount o riginally paid. Consequently, this argument holds no merit.