J-S50014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF PENELOPE ANN

PREBISH PAULA J. OPALKA AND

JAMES W. OPALKA, EXECUTORS OF

THE ESTATE OF PENELOPE ANN

PREBISH A/K/A PENNY A. PREBISH

v.

MONICA D. PREBISH,

ADMINISTRATOR OF THE ESTATE OF

DONALD F. PREBISH A/K/A DONALD

FRANCIS PREBISH, DECEASED,

MONICA D. PREBISH, INDIVIDUALLY,

MICHELLE D. PREBISH AND MARK D.

PREBISH

APPEAL OF: MONICA D. PREBISH

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1837 WDA 2017

Appeal from the Order Entered November 1, 2017

In the Court of Common Pleas of Cambria County Orphans’ Court at

No(s): 11-08-00975

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2018

Monica D. Prebish (“Monica”) appeals from the order that granted the

petition for exclusive possession of real property (“the property”)1filed by the

executors of the estate of Penelope A. Prebish (“Penelope”). We affirm.

The orphans’ court offered the following summary of the history of the

parties involved in this appeal. Donald F. Prebish (“Donald”) and Penelope . . . were married

[and had three adult children: Monica, Mark Prebish (“Mark”), and

Michelle Prebish (“Michelle”). Divorce proceedings had been

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1 The property, a house in Ebensburg, Pennsylvania, appears to have been

the Prebishes’ primary residence.
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initiated] when Donald died on August 22, 2008. Although an

equitable distribution order had been entered, no divorce decree

was ever finalized prior to Donald’s death. The order entered in

the divorce case awarded the property to Donald. Donald’s will

dated June 29, 1979 devised all of this property to Penelope. On

December 16, 2015[,] Penelope died.

Monica was named the administratrix of Donald’s estate.

The disputes between the heirs in this matter began when Mark

. . . filed a petition to remove Monica as the administratrix of

Donald’s estate. In response, Monica indicated that while she is

residing in the property “she has been making improvements and

preparing the same for sale.” After hearing from all parties, th[e

orphans’] court entered an order on June 21, 2016, giving Monica

120 days to complete repairs on the residence in question and list

it for sale and deferred ruling on the petition to remove her as

administrator of Donald’s estate. The purpose of this order was

to afford Monica an opportunity to carry out her duties.

Thereafter, the executors of Penelope’s estate, her sister and

brother-in-law, Paula Opalka and James Opalka (“Opalkas”) filed

an action in declaratory judgment seeking to have the court

declare the property to be part of Penelope’s estate. After

extensive briefing and argument, th[e orphans’] court entered an

order of January 20, 2017 finding that Penelope’s estate was the

correct devisee of the property. No appeal from this order was

taken.

Throughout the beginning of 2017, it appears as though the

parties attempted to work out an arrangement whereby the

property could be sold. The Opalkas filed a petition for exclusive

possession relative to the property on July 25, 2017. The court

held a status conference relative to this petition on September 21,

2017. A hearing was held on October 2, 2017. At its conclusion,

the parties indicated that they may be able to reach a

compromise; therefore, the court did not render a decision. On

October 18, 2017, the court afforded the parties until October 31,

2017 to submit a written agreement of compromise. On October

30, 2017, the Opalkas submitted a written agreement of

compromise. On that same date, Monica submitted a response to

the same indicating that she did not agree to the same. In

response, the Opalkas filed a pleading that highlighted the

inconsistencies present in Monica’s response. As a result of the

parties’ inability to reach a settlement, the court entered an order

on November 1, 2017[, requiring Monica to vacate the property
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within sixty days; to pay $9,000 to Penelope’s estate to cover rent

of the property at $750 per month from January 2017 through

December 2017; and to pay $3,150 in attorney fees to the estate.]

Orphans’ Court Opinion, 1/8/18, at 2-3 (footnote, citation, and unnecessary

capitalization omitted).

Monica filed a timely notice of appeal, and both Monica and the orphans’ court complied with Pa.R.A.P. 1925. Monica presents the following questions

for this Court’s review, which we have reordered for ease of disposition:

1. Whether the [orphans’] court erred in directing [Monica] to

vacate her residence, which is estate property, but in which

she lived at the time of [Penelope’s] death with [Penelope’s]

permission?

2. Whether the [orphans’] court erred in directing [Monica] to

pay to [Penelope’s] estate rent for a time period in which

she resided in the residence of [Penelope]?

3. Whether the [orphans’] court erred in directing [Monica] to

pay attorney’s fees to [Penelope’s] estate for filing and

presentation of a petition for exclusive possession?

Appellant’s brief at 4 (unnecessary capitalization omitted).

We begin with our standard of review.

When reviewing a decree entered by the orphans’ court, this

Court must determine whether the record is free from legal error

and the court’s factual findings are supported by the evidence.

Because the orphans’ court sits as the fact-finder, it determines

the credibility of the witnesses, and on review, we will not reverse

the orphans’ court’s credibility determinations absent an abuse of

discretion. However, we are not constrained to give the same

deference to any resulting legal conclusions. The orphans’ court

decision will not be reversed unless there has been an abuse of

discretion or a fundamental error in applying the correct principles

of law.

In re Cohen, 188 A.3d 1208, 1210-11 (Pa.Super. 2018) (cleaned up).
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We first consider Monica’s claim that the orphans’ court erred in

directing her to vacate the property. Monica argues that the ruling is contrary

to 20 Pa.C.S. § 3311, which provides as follows in relevant part.

A personal representative shall have the right to and shall take

possession of, maintain and administer all the real and personal

estate of the decedent, except real estate occupied at the time of

death by an heir or devisee with the consent of the decedent. He

shall collect the rents and income from each asset in his

possession until it is sold or distributed, and, during the

administration of the estate, shall have the right to maintain any

action with respect to it and shall make all reasonable

expenditures necessary to preserve it. The court may direct the

personal representative to take possession of, administer and

maintain real estate so occupied by an heir or a devisee if this is

necessary to protect the rights of claimants or other parties.

Nothing in this section shall affect the personal representative’s

power to sell real estate occupied by an heir or devisee.

20 Pa.C.S. § 3311. Monica focuses upon the portion of the first sentence that excepts real

estate occupied by an heir at the time of the death with the decedent’s consent

from a personal representative’s right to take possession. Monica’s brief at

143. While acknowledging the later provision that the court may direct the

personal representative to take possession if such is necessary to protect the

rights of other parties, Monica contends that the record does not show that

removing her was required for the Opalkas to administer the estate and sell

the property. Id. at 14-15.

The orphans’ court addressed Monica’s claim as follows.

At the hearing on October 2, 2017[,] we did not find the

testimony of Monica to be credible as to the reasons given for the

delay in preparing the property for sale. Rather, they are the
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same reasons she gave the court when her brother Mark was

seeking to remove her as executor of her father’s estate in the

summer of 2016. We are persuaded that the Opalkas will continue

to be thwarted in their efforts to administer Penelope’s estate

unless Monica is removed from the property. Based on all of the

testimony and the court’s familiarity with the history of this family,

it appears as if Monica believes she is entitled to live in the

property to the exclusion of the other heirs Mark and Michelle.

While it appears as if Michelle is willing to allow her to continue

living there indefinitely, Michelle’s wishes are not paramount for

the Opalkas but rather Penelope’s wishes as reflected in her last

will and testament are the polestar that must be followed. In

giving the parties time to work out a solution and in giving Monica

time to make other arrangements, the court attempted to balance

Monica’s living situation with the necessity faced by the Opalkas

to wrap up the estate. The court finds that we have given Monica

as much time as is possible to make arrangements for the sale of

the property and the time has come to allow someone else to

make these arrangements.

Orphans’ Court Opinion, 1/8/18, at 4 (unnecessary capitalization omitted).

The orphans’ court determination is supported by the record. In June

2016, Monica testified that she was willing to make repairs to maximize the

value of the property and to list it for sale. N.T. Rule to Show Cause, 6/20/16,

at 18.2 Monica spoke of removing rugs and commencing painting by the end

of August 2016, and enlisting friends to install flooring. Id. at 19-20. Monica

also indicated that some windows and gutters needed to be replaced. Id. at

20. She represented that she was willing to use her own money to fix up the

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2 The show-cause hearing was conducted in connection with Donald’s estate

at docket number 11-08-0975. The transcript, as well as the rest of the record

from that case, is included in the certified record before us in this appeal.
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house, and estimated that it would take “about a year and a half” to complete

all of the necessary repairs. Id. at 21, 23.

About a year and a half after that hearing, the orphans’ court conducted

the hearing on the Opalkas’ petition for possession. At that time, the house

was still “full of stuff” with just “a path to get through.” N.T. Exclusive

Possession Hearing, 10/2/17, at 8, 9. All of the carpeting still needed to be

replaced, there was drywall that was unfinished, and pet odors that would

impair sale of the property. Id. at 9. Photographs taken by Monica showed

extensive areas of cracked and crumbled plaster, some leaving significant

holes of exposed lath; wallpaper that was only partially removed; and outdoor

areas in disrepair. Id. at Exhibits 1A-1Y.

The Opalkas made attempts to get Monica, Michelle, and Mark together

to determine what to do with the copious personal property cluttering the

residence. Id. at 34-25. The Opalkas sought to gain entrance to the property,

arranging for a constable to be there for security purposes, but Monica called

the police and her attorney rather than allow access. Id. at 36, 60. Indeed,

Monica had not really spoken to the Opalkas since Penelope died and Ms.

Opalka “was told to get out and stay out.” Id. at 27. Further, Monica, through

counsel, indicated to the Opalkas that she intended to remain in the property

“until a final determination is made as to what will take place with the

residence” and that she would not leave “unless a proper action in eviction
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and/or an action in ejectment is carried through.” Petition for Exclusive

Possession, 7/25/17, at Exhibit B.

Upon this record, the orphans’ court acted within its discretion in

determining that removing Monica from the property was necessary to protect

Mark’s rights. Its finding that Monica would otherwise continue to obstruct

the Opalkas’ ability to sell the property for the benefit of all of Penelope’s heirs

was more than justified by the evidence.

We next review Monica’s contention that the orphans’ court committed

an error of law in requiring her to pay rent. The court offered the following

explanation of its decision.

Monica indicated as early as the summer of 2016 that she

was making improvements to the property and readying it for

sale. At the hearing on October 2, 2017, the court heard

testimony that this work had still not been completed. We found

credible the testimony that the house still has some value as a

rental unit and credited the testimony of Patricia Chwatek of

Howard Hanna Real Estate as to this value. The court does not

understand how it could countenance allowing Monica to live in

the property rent free while the estate is insolvent and the largest

debt of the estate is a claim by Monica. The Opalkas are required

to protect the interests of the other heirs, Mark and Michelle.

Without payment of rent to the estate, Monica benefits while the

other heirs do not.

Orphans’ Court Opinion, 1/8/18, at 4-5 (unnecessary capitalization omitted).

Monica posits that the orphans’ court’s decision is improper in light of

this Court’s decision in In re Padezanin, 937 A.2d 475 (Pa.Super. 2007). The appellant in that case, like Monica, was ordered to pay rent for living in a

property which she had occupied at the time of the decedent’s death with the
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decedent’s consent. Id. at 482. This Court reversed, citing a comment to 20

Pa.C.S. § 3311 which provides: “It is not contemplated that rents shall be

collected by the personal representative from real estate occupied by an heir

or devisee unless needed for payment of claims.” Id. (emphasis omitted).

This Court interpreted the statute to indicate that “as long as the estate is

solvent, rental is not awarded to an estate from an heir or devisee occupying

land of the decedent when the decedent died.” Id. Monica argues that because the evidence showed that Penelope’s estate

was solvent, and that she was living at the property at the time of Penelope’s

death with Penelope’s consent, the Padezanin ruling prohibits requiring

Monica to pay rent. Monica’s brief at 11.

No party disputes that Monica resided at the property when Penelope

died, and that she was there with Penelope’s consent. Further, although

Monica herself described the estate as “bankrupt,” N.T. Exclusive Possession

Hearing, 10/2/17, at 56, the estate is solvent. In its present condition, the

property has a market value of approximately $200,000. Id. at 10. The

estate further includes furnishings and personal property estimated to be

worth $50,000.3 Id. at 28. Ms. Opalka testified that the total debts of the

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3 This estimate is based on Ms. Opalka’s visits to the property during

Penelope’s lifetime. N.T. Exclusive Possession Hearing, 10/2/17, at 28. As

discussed, based upon Monica’s refusal to cooperate, Ms. Opalka has not had

access to the property to discern the present status of Penelope’s personal

property.
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estate amount to $30,900. Id. at 19. As such, the assets of the estate are

greater than its debts.

However, we find this Court’s later decision in In re Estate of Bouks, 964 A.2d 4, 5 (Pa.Super. 2008), to be more apt to the circumstances of the

instant case than those of Padezanin. In Bouks, the issue before this Court

was “whether an estate beneficiary who is residing with the decedent at the

time of death may continue to live on the estate’s real property [for] four

years without paying rent when that beneficiary is responsible for the delay in

the disposition of the real estate.” Id. at 5. The appellant was one of two

beneficiaries of his mother’s estate, and indicated that he wished to purchase

the home in which he had resided with his mother. Id. After two years of

living in the residence rent-free, he filed a petition seeking to purchase the

home at a fraction of its appraised value. Id. The orphans’ court denied the

request and ordered the appellant to file an account and to place the property

for sale. Id. When the appellant did not comply, his sister filed a petition for

contempt, prompting the appellant to finally purchase the home for 250% the

amount he originally offered and to file the account. Id. The sister filed

objections to the account contending that the appellant should have to pay

rent and the orphans’ court agreed, requiring the appellant to pay rent for the

time he lived in the property except for the six months immediately following

his mother’s death. Id.
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On appeal, the appellant relied upon Padezanin in claiming that

because he lived with his mother in the property with her permission at the

time of her death and the estate was solvent, he could not be required to pay

rent. This Court disagreed, explaining as follows.

Padezanin is distinguishable. In that case, we vacated an award

of rental in favor of an estate and against an heir who was residing

on real estate owned by the decedent with decedent’s permission

when he died. However, the heir had vacated the real estate

shortly after the estate was opened and rental had been awarded

for a matter of a few months. As noted, the heir left the real

estate in a timely manner and did not engage in conduct

preventing the real estate from being properly administered.

Nothing in that decision should be construed so as to permit the

beneficiary of an estate to reside on the estate’s real property

rent-free for an unlimited period of time.

In the present case, [the a]ppellant was directly responsible

for the delay in his purchase of the estate’s real property. He

attempted to purchase the residence for $70,000 when the

appraisals indicated that it was worth between $110,000 and

$140,000. [The a]ppellant then defied a directive from the

orphans’ court that he list the property for sale. It was only when

[the a]ppellant was faced with a contempt petition that the sale

was finally consummated. Since [the a]ppellant’s dilatory

behavior prevented the co-beneficiary of this estate from

receiving her one-half interest in the real estate for four years, the

orphans’ court properly awarded rental.

Id. at 6-7.

As discussed above, Monica has been living rent-free in the primary

asset of the estate since December 2015, to the detriment of the other heirs.

Monica has made it impossible for the Opalkas to liquidate the estate’s assets

to pay outstanding debts. Monica represented to the orphans’ court in June

2016, when she had already been living in the property for six months after
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Penelope’s death, that she wished to remain in the property to use some

“elbow grease and some tender loving care” to maximize the sale value of the

house and recoup more than the money she would put into fixing it up. N.T.

Rule to Show Cause, 6/20/16, at 18. Yet, at the time that the orphans’ court

issued the appealed-from order in October 2017, Monica had taken little if any

steps toward readying the property for sale. Further, she expressed her

intention to stay in the property without paying rent until she was forced to

leave. Under Bouks, the orphans’ court did not err in awarding rental for the

time period in which Monica’s dilatory conduct deprived Mark and Michelle

from their interests in the property.4

Monica’s remaining claim is that the orphans’ court erred in awarding

the estate attorney fees in connection with the litigation of the petition for

exclusive possession of the property. She argues that the record lacks

evidence to support a finding that she engaged in conduct that warranted the

award of fees. Monica’s brief at 12-13.

In considering Monica’s issue, we bear in mind that “appellate review of

an order of a tribunal awarding counsel fees to a litigant is limited solely to

determining whether the tribunal palpably abused its discretion in making the

fee award.” Lucchino v. Commonwealth, 809 A.2d 264, 268-69 (Pa. 2002).

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4 We note that, similar to the orphans’ court in Bouks, the court did not order

Monica to pay rent for the entirety of her stay in the property. Rather, it

exempted the first year following Penelope’s death from Monica’s back-rent

obligation.
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While the general rule is that each party to litigation is responsible for

its attorney fees, our legislature has enumerated circumstances in which a

participant may be entitled to the payment of attorney fees, including a

“participant who is awarded counsel fees as a sanction against another

participant for dilatory, obdurate or vexatious conduct during the pendency of

a matter.” 42 Pa.C.S. § 2503(7). The orphans’ court detailed its reasons for

awarding the estate counsel fees based upon this statute as follows:

It has been conceded by Monica at various points in the

litigation surrounding both Donald’s estate and Penelope’s estate

that the property must be sold. However, it has become apparent

to the court that Monica had the intention to use the leverage she

possessed as the occupier of the real estate to maximize the terms

and time of the sale for her sole benefit.

. . . . We believe the record supports the award of counsel fees based

on Monica’s conduct throughout the litigation. We shall rely on

her inconsistent contentions and dilatory behavior in allowing the

Opalkas to fulfill their duties as executors to support the award of

attorney’s fees to Penelope’s estate.

Orphans’ Court Opinion, 1/8/18, at 5-6 (unnecessary capitalization omitted).

Contrary to Monica’s arguments, we find the orphans’ court’s

determination supported by the record. As is iterated in detail above, the

record extending back to litigation in Donald’s estate has demonstrated that

Monica has made representations about facilitating the sale of the property

that she failed to commence, let alone complete. Monica expressed the intent

to remain in the home indefinitely, and has not cooperated with the Opalkas,

whom Penelope chose to administer her estate, to allow them to do their job
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of distributing the estate to all of Penelope’s heirs. As the estate expended

resources in the nature of attorney fees as a direct result of Monica’s dilatory

conduct, the orphans’ court did not abuse its discretion in requiring Monica to

reimburse the estate. Accord Padezanin, supra at 484 (affirming award of

attorney fees incurred because litigants refused to comply with obligation until

a petition for contempt was drafted and served).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2018