J-A03001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF MARY L. BECHTEL, 

DECEASED AND LARRY E. BECHTEL

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

DONALD R. BECHTEL AND MICHAEL T. 

BECHTEL

Appellants No. 1287 MDA 2014

Appeal from the Order Entered July 2, 2014

In the Court of Common Pleas of Dauphin County

Orphans' Court at No(s): 2209-1033

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED MAY 06, 2015

Appellants, Donald R. Bechtel and Michael T. Bechtel, appeal from the 

July 2, 2014 orphans’ court order, imposing a surcharge of $17,230.40 

against Donald1for the breach of his fiduciary duty as attorney-in-fact for his 

mother, Mary L. Bechtel (Decedent), entered on remand from a prior 

decision of this Court. After careful review, we reverse and remand for 

further proceedings consistent with this memorandum.

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 We refer to most of the parties in this appeal by their first name because 

their surname is the same.
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A prior panel of this Court noted the facts and procedural history as 

follows.

On April 9, 1996, as a result of injuries 

she had sustained in a serious automobile 

accident, the Decedent executed a Power of 

Attorney (“POA”) naming her son, Donald, as 

her attorney-in-fact, a designation which 

remained in effect until the day of her death. 

Pursuant to the authority granted by the POA, 

Donald managed the Decedent’s finances, 

paying her bills and depositing any income into 

her bank account[s, including her Mid Penn 

Bank checking account]. Donald and his wife, 

Donna, to whom Donald had apparently 

delegated some of his duties, were responsible 

for writing hundreds of checks on behalf of the 

Decedent and at the Decedent’s request.

...

On October 23, 2009, the Decedent died 

testate and was survived by [her three sons,] 

Donald, Michael and Larry [Bechtel, a residual 

beneficiary under Decedent’s Will]. Shortly 

thereafter, on November 5, 2009, Donald and 

Michael were appointed coexecutors of the 

Decedent’s Estate as provided in the 

Decedent’s [] Will [] dated January 4, 2008. ...

Orphans’ Court Opinion, 12/21/2012, at 2-3.

In re Estate of Bechtel, 92 A.3d 833, 835-836 (Pa. Super. 2014).

Larry, on behalf of the Estate of Mary L. Bechtel (Estate), filed 

objections to Donald’s account of Decedent’s Mid Penn Bank checking 

account. From 1996 until 2000, only Decedent and Donald, as her attorneyin-fact, were able to issue checks from the account. On February 7, 2000, 

Donna Bechtel, Donald’s wife, was added as an authorized signatory to the 
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account. Id. at 836 n.2. On March 26, 2002, Decedent added Donald and 

Donna to the checking account as joint owners with the right of survivorship. 

Id. 

On September 30, 2011, Donald filed an [a]ccount 

with the orphans’ court for the period from 1996 to 

2009. The [a]ccount showed [over 2,000] deposits 

and withdrawals for the Decedent’s Mid Penn Bank 

checking account for the years 1996-2009, and 

included 36 checks with no identified payee. [From 

1996-2009, there were 1,048 itemized expenses, 

including 1,018 checks.] The checks without payees, 

according to year, are as follows: 1999—four 

checks; 2000—ten checks; 2001—nine checks; 

2002—ten checks; 2003—two checks; and 2009—

one check. The largest unaccounted-for check was 

Check Number 605, written on July 13, 1999, for 

$10,000. The orphans’ court sustained Larry’s 

objections to the Account, and surcharged Donald 

$17,230.40—the total of the 36 checks—for breach 

of fiduciary duty.

Id. at 837-838. In imposing said surcharge, the orphans’ court focused on 

three of the 36 checks with no identified payee. Namely, the 

aforementioned check number 605 for $10,000.00, check number 625, 

dated October 6, 1999, for $2,790.00, and check number 698, dated 

September 11, 2000, for $400.00. The orphans’ court found as follows.

Donald breached his fiduciary duty as the Decedent’s 

attorney-in-fact in that he failed to “[k]eep full and 

accurate record[s] of all actions, receipts and 

disbursements on behalf of the principal.” 20 

Pa.C.S. § 5601(e)(4). The testimony at the hearing 

established that Donald and/or Donna had, while 

preparing the [Decedent’s] Homestead for sale, 

inadvertently destroyed several years’ worth of 

financial records relating to Donald’s representation 

of the Decedent. A thorough review of the record 
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shows that Donald could not account for the 

disbursement of at least thirty-six (36) checks 

written while he was acting as the Decedent’s 

attorney-in-fact. By this Court’s tally, the total of 

the disbursements represented by these missing 

checks was $17,245.40,[2]and it is that amount for 

which Donald will be surcharged.

Orphans’ Court Opinion, 12/21/2012, at 4. The orphans’ court also 

dismissed Donald and Michael’s request for counsel fees and costs. 

Bechtel, supra at 837. Donald and Michael appealed to this Court. 

A prior panel of this Court reversed and remanded, instructing the 

orphans’ court to evaluate the sufficiency of the testimony presented by 

Donald and the witnesses who testified on his behalf. Id. at 839-840. 

Specifically, we directed the orphans’ court to analyze the 1999 checks and 

evidence under the standard set forth in In re Strickler’s Estate, 47 A.2d 

134, 135 (Pa. 1946), and to utilize Section 5601(e)(4) for the evidence and 

checks issued from 2000 through 2009.3 Id. at 842. This Court noted 

certain evidence that the orphans’ court did not discuss in connection with 

____________________________________________

2

In response to Donald and Michael’s motion for post-trial relief, the 

orphans’ court amended the amount of the surcharge to $17,230.40 to 

correct a mathematical error. Id. at 837.

3

This Court explained that the effective date of Section 5601(e), which 

codified certain fiduciary duties of an attorney-in-fact, was December 12, 

1999. Prior to that date, Strickler established the duty of a fiduciary to 

justify disbursements claimed by the fiduciary. Therefore, Donald, acting as 

Decedent’s attorney-in-fact from 1996 until 2009, had to comply with the 

Strickler standard for any checks issued prior to December 12, 1999 and 

with Section 5601(e)(4) thereafter. Id. at 839.
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the surcharge. See id. at 840-842. Specifically, Appellants introduced a 

chart that tracked gifts the Decedent made to her four sons4 between July 

1996 and March 2003. Id. at 841. The chart showed that from 1996 to 

2003, Decedent gave gifts totaling $273,500.00 to her sons, mostly in 

$10,000.00 amounts. Id. Decedent’s granddaughter, Stacy Fenice, also 

testified that Decedent gave her a $10,000.00 gift in May 1998 to assist her 

in purchasing a townhouse. Id. at 842. There was also evidence of 

Decedent loaning her family tens of thousands of dollars. Id. Regarding the 

two other checks numbered 625 and 698, Appellants admitted into evidence, 

without objection, a letter from counsel for Donald and Michael identifying 

the payees for those checks. Id. at 840. Specifically, check number 625 for 

$2,790.00 was made payable to J.H. Rissinger & Sons for new windows, and 

check number 698 was for $400.00 to Eugene Adams, a dentist, for 

dentures. Id. This Court explained that we were reversing and remanding 

the case to the orphans’ court as follows.

In light of the unrebutted testimony discussed 

above, and specifically the Decedent's history of giftgiving to her sons, mostly in $10,000.00 amounts, 

between the years 1996 and 2003, we conclude the 

orphans’ court judge committed error in failing to 

apply Strickler, supra, and evaluate the evidence in 

order to answer the question of whether the 

unaccounted-for checks issued in 1999 represent a 

breach of fiduciary duty.

____________________________________________

4

In addition to Donald, Michael, and Larry, Decedent had a fourth son, 

Harold Bechtel, who is now deceased.
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Furthermore, the orphans’ court judge imposed 

a surcharge for every unaccounted-for check written 

after December 12, 1999. The judge provided no 

analysis as to how Donald failed to perform his 

fiduciary duty under Section 5601(e)(4), given that 

of 850 itemized expenses for the ten year period 

from 2000 through 2009, there were only 32 checks 

at issue, and the court specifically found that the 

records were inadvertently destroyed.10 Again, we 

conclude the orphans’ court judge committed an 

error of law.

Accordingly, based on our review of the record, 

we reverse the order of the orphans’ court regarding 

the surcharge and remand for the court to use the 

appropriate standards and analyze the evidence 

thereunder.

10 We note that after March 26, 2002, the date the 

Decedent changed the ownership of the Mid Penn 

Bank checking account, any remaining amounts in 

that account did not pass under her Will, but passed 

directly to Donald and Donna as joint owners with 

the right of survivorship.

Id. at 842 (footnote in original). Further, we “conclude[d] that the motion 

[for counsel fees and costs] was timely and the orphans’ court erred in 

finding that it was without jurisdiction to entertain the request for counsel 

fees.” Id. at 843. No one filed a petition for allowance of appeal with our 

Supreme Court.

Following remand, the orphans’ court, without conducting any further 

hearings or receiving any additional evidence, issued its July 3, 2014 

memorandum opinion and order that again imposed the $17,230.40 

surcharge on Donald. Orphans’ Court Opinion, 7/3/14, at 4-5. The orphans’ 
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court reasoned that Donald and Michael “had the burden to justify all 

disbursements through the use of proper vouchers or equivalent proof in 

support of each disbursement[, and a] thorough review of the record reveals 

that [they] had issued [36] checks which were not properly explained or 

documented[.]” Id. at 2. Specifically, regarding the $10,000.00 check 

(number 605), the orphans’ court found there was no evidence “as to who 

received this money, nor was there any documentary evidence provided to 

support the argument that [c]heck number 605 was similar to prior gifts. 

Nor was there evidence to support a conclusion that the check ‘must have 

been written to one of Decedent’s children or relatives.’” Id. at 3. With 

respect to check numbers 625 and 698, for $2,790.00 and $400.00, 

respectively, the orphans’ court concluded that the letter from Appellants’ 

attorney, which set forth the purported payees of said checks, “did not 

provide any documentary evidence in support of this statement. Since this 

letter was not prepared under oath, it does not even rise to the level of the 

accountant’s unsupported testimony [under Strickler].” Id. Further, the 

orphans’ court concluded that Donald had a fiduciary duty to maintain the 

financial records, which he violated “by either personally destroying [the 

records], or allowing [them] to be [inadvertently] destroyed by another[,] 

after Decedent passed away. Thus, a surcharge was proper because Donald 

failed to exercise common prudence, skill or caution in the performance of 

his fiduciary duty.” Id. at 5, citing In re Miller’s Estate, 26 A.2d 320, 321 
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(Pa. 1942). The orphans’ court scheduled a hearing to consider Appellants’ 

post-trial motion for witness fees, costs of suit, and reasonable attorneys’ 

fees, but cancelled the hearing after Appellants again filed a timely appeal 

with this court.5

On appeal, Appellants present the following issue for our review.

Whether the orphans’ court erred in ordering the 

surcharge of Donald R. Bechtel on remand in the 

amount of $17,230.40[?]

Appellants’ Brief at 4.

We begin by noting our deferential standard of review.

The findings of a judge of the orphans’ court 

division, sitting without a jury, must be accorded the 

same weight and effect as the verdict of a jury, and 

will not be reversed by an appellate court in the 

absence of an abuse of discretion or a lack of 

evidentiary support. This rule is particularly 

applicable to findings of fact which are predicated 

upon the credibility of the witnesses, whom the 

judge has had the opportunity to hear and observe, 

and upon the weight given to their testimony. In 

reviewing the Orphans’ Court’s findings, our task is 

to ensure that the record is free from legal error and 

to determine if the Orphans’ Court’s findings are 

supported by competent and adequate evidence and 

are not predicated upon capricious disbelief of 

competent and credible evidence.

When the [orphans’] court has come to a 

conclusion through the exercise of its discretion, the 

party complaining on appeal has a heavy burden. It 

____________________________________________

5 The orphans’ court and Appellants have complied with Pennsylvania Rule of 

Appellate Procedure 1925. The orphans’ court’s September 16, 2014 

1925(a) opinion directs this Court to its July 3, 2014 memorandum opinion.
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is not sufficient to persuade the appellate court that 

it might have reached a different conclusion if, in the 

first place, charged with the duty imposed on the 

court below; it is necessary to go further and show 

an abuse of the discretionary power. An abuse of 

discretion is not merely an error of judgment, but if 

in reaching a conclusion the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, 

bias or ill-will, as shown by the evidence of record, 

discretion is abused. A conclusion or judgment 

constitutes an abuse of discretion if it is so lacking in 

support as to be clearly erroneous .... If the lack of 

evidentiary support is apparent, reviewing tribunals 

have the power to draw their own inferences and 

make their own deductions from facts and 

conclusions of law. Nevertheless, we will not lightly 

find reversible error and will reverse an orphans’ 

court decree only if the orphans’ court applied an 

incorrect rule of law or reached its decision on the 

basis of factual conclusions unsupported by the 

record.

In re Estate of Warden, 2 A.3d 565, 571 (Pa. Super. 2010) (citations and 

quotations omitted).

On remand, the orphans’ court found that Appellants’ testimony and 

evidence was not sufficient to justify each of the 36 unidentified checks 

contained in Appellants’ accounting of Decedent’s Mid Penn Bank checking 

account. Orphans’ Court Opinion, 7/3/14, at 2. The orphans’ court 

concluded that the failure to explain the expenditures was a breach of 

Donald’s fiduciary duty. Id. at 4. As a result, it imposed a surcharge on 

Donald in the amount of those checks. Id. at 5. Upon careful review, we 

are again constrained to reverse because the orphans’ court erred in 

applying Strickler and Section 5601(e).
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An orphans’ court may surcharge an attorney-in-fact for the loss 

caused by a breach of his fiduciary duty. In re Shahan, 631 A.2d 1298, 

1303 (Pa. Super. 1993), appeal denied, 644 A.2d 1202 (Pa. 1994). 

“Surcharge is the penalty for failure to exercise common prudence, common 

skill and common caution in the performance of the fiduciary’s duty and is 

imposed to compensate beneficiaries for loss caused by the fiduciary’s want 

of due care. ... [I]f the fiduciary exercise[s] judgment in good faith, he will 

have done his duty.” In re Miller’s Estate, supra.

In general, one who seeks to surcharge a [fiduciary] 

bears the burden of proving that the [fiduciary] 

breached an applicable fiduciary duty. However, 

when a beneficiary has succeeded in proving that the 

[fiduciary] has committed a breach of duty and that 

a related loss has occurred, we believe that the 

burden of persuasion ought to shift to the [fiduciary] 

to prove, as a matter of defense, that the loss would 

have occurred in the absence of a breach of duty. 

We believe that, as between innocent beneficiaries 

and a defaulting fiduciary, the latter should bear the 

risk of uncertainty as to the consequences of its 

breach of duty.

In re Estate of Aiello, 993 A.2d 283, 289 (Pa. Super. 2010), quoting, In 

re Estate of Stetson, 345 A.2d 679, 690 (Pa. 1975) (citations and footnote 

omitted).

An attorney-in-fact has the fiduciary duty to, among other things, 

account for distributions he makes independently on behalf of the principal, 

but there is no duty to account for distributions made by the principal 

herself. Bechtel, supra at 839; 20 Pa.C.S.A. § 5601(e)(4). Prior to the 
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effective date of Section 5601(e)(4) in December 1999, “In re Strickler’s 

Estate, supra, established the duty of a fiduciary to justify disbursements 

claimed by him [through ‘[p]roper vouchers or equivalent proof’]. Under 

Strickler, ‘[a]ccountant’s unsupported testimony is generally insufficient.’ 

Accordingly, the orphans’ court must evaluate the sufficiency of the 

accountant’s testimony and evidence.” Bechtel, supra at 839 (emphasis 

added, citations omitted). “Once the fiduciary has validated the 

disbursements, the burden then shifts to the objector to disprove them.” 

Id. (citation omitted). After the December 12, 1999 effective date of 

Section 5601(e), “[a]n agent acting under a power of attorney has a 

fiduciary relationship with the principal [and], the fiduciary relationship 

includes the duty to[, among others,] ... (4) Keep a full and accurate record 

of all actions, receipts and disbursements on behalf of the principal.” 20 

Pa.C.S.A. § 5601(e)(4) (emphasis added), deleted effective 1/1/15 and 

moved to new 20 Pa.C.S.A. § 5601.3(b)(4) (“Agent’s duties”); see Pa. H.B. 

1429, 198th Gen. Assem., Reg. Sess. (2014), Pa. Legis. Serv. Act No. 2014-

95. Therefore, the checks issued prior to December 12, 1999 should have 

been reviewed in accordance with Strickler, with Larry’s initial burden, as 

the objector, being to supply sufficient evidence the checks were issued by 

Donald. Under Strickler, Donald has a fiduciary duty to account only for 

those checks that he issued on Decedent’s behalf. Bechtel, supra.
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In this case, the orphans’ court erred when applying these standards. 

The orphans’ court’s conclusion that Larry, as the objector, met his initial 

burden of proving that Donald breached his fiduciary duty of keeping a full 

and accurate record of all independent distributions that Donald made on 

Decedent’s behalf, was not supported by competent and adequate 

evidence. Specifically, the evidence does not show that Donald, in his 

capacity as Decedent’s attorney-in-fact, independently issued any of the 36 

unidentified checks on Decedent’s behalf, as opposed to Decedent issuing 

the checks herself. 

Regarding check number 605 for $10,000.00, issued on July 13, 1999, 

Appellants presented unrebutted testimony that Decedent signed the check 

as a gift. Appellants introduced a chart documenting Decedent’s history of 

gift-giving to her sons, mostly in $10,000.00 amounts, from her Prudential 

checking account. 

[T]he chart showed Donald received $1,000.00 on 

July 13, 1996; $10,000.00 in December of 1997, 

1998, 1999, 2000, 2001, and 2002, and $6,000.00 

on March 20, 2003. Harold received $10,000.00 in 

December of 1997 and 1998, two separate 

$10,000.00 amounts in December of 2000, and 

$10,000.00 in December of 2001 and 2002. Michael 

received $4,500 on July 13, 1996, $10,000.00 in 

December of 1996, 1997, 1998, 1999, 2000, 2001, 

and 2002, and $6,000.00 on March 20, 2003. ... 

Decedent gave her granddaughter, Stacy, a check 

for $10,000 on May 6, 1998.

Bechtel, supra at 841. Donna testified that Decedent wrote and signed all 

of these checks. N.T., 7/30/12, at 53. 
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In contrast, there was no evidence that anyone other than Decedent 

signed the checks. Donna testified that she did not sign check 605 because 

she was not an authorized signatory on the Mid Penn account until 2000. 

Id. at 52. Likewise, Donald testified that he did not remember signing check 

605. Id. at 108-109. In addition, both Donna and Donald maintained that 

they did not make gifts on Decedent’s behalf. Id. at 61, 108. Therefore, 

under the Strickler standard, there was inadequate evidence from which 

the orphans’ court could conclude that Donald made the $10,000.00 

disbursement. Bechtel, supra at 839. Instead, the unrebutted evidence 

showed that Decedent, not Donald, issued check 605 as a gift. Id. at 839, 

842. Absent any contrary evidence provided by Larry, there is no 

evidentiary support for the conclusion that Donald had a fiduciary duty to 

account for the $10,000.00 check. Warden, supra.

The same is true for check number 625 for $2,790 issued on October 

6, 1999. The evidence shows that Decedent, as opposed to Donald, made 

this disbursement because the evidence clearly established that check 625 

was issued to J.H. Rissinger & Sons for new windows at one of Decedent’s 

rental properties. N.T., 7/30/12, at 21, 190, Appellants’ Exhibit 9, 2/17/11 

Letter; Bechtel, supra at 840. This was a justified expenditure. See 

Bechtel, supra at 839. Larry did not object to this evidence or introduce 

any evidence to the contrary. See id. at 840. The orphans’ court erred in 

refusing to consider this unrebutted evidence, admitted at the hearing with 
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no objection. See id. Similarly, Larry did not present any evidence 

regarding the two other checks with unidentified payees issued in 1999.6 

Therefore, the trial court erred in concluding that Donald had a fiduciary 

duty to account for these four checks.7 See Aiello, supra.

The third check specifically discussed by the orphans’ court was check 

number 698, issued on September 11, 2000, for $400.00. Similar to the 

previously discussed check 625, the evidence established that check 698 

was issued to Dr. Eugene Adams, a dentist, as payment for Decedent’s 

dentures. N.T., 7/30/12, at 21, 190, Appellants’ Exhibit 9, 2/17/11 Letter;

Bechtel, supra at 840. The orphans’ court again erred in rejecting this 

evidence. See Bechtel, supra at 839. Larry did not object or introduce 

any adverse evidence tending to show that Donald, rather than Decedent, 

issued this check. See id. Therefore, the evidence was likewise inadequate 

to conclude that Donald breached a fiduciary duty by failing to account for 

this check. See generally 20 Pa.C.S.A. § 5601(e)(4).

The orphans’ court did not specifically discuss any of the remaining 31 

checks with unidentified payees issued from 2000 through 2009. As with 

the other checks, Larry failed to offer any evidence that Donald or Donna 

____________________________________________

6 Check number 594 issued on June 11, 1999 for $50.00 and number 620 

issued on September 8, 1999 for $105.00.

7 We note that Larry did not object to any of the 189 other checks issued 

from the start of 1996 through the end of 1999, for $73,077.24.
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issued any of these 31 checks. See Aiello, supra. Although ten of the 

checks, totaling $1,912.71, were issued after March 26, 2002, when Donald 

and Donna were joint owners of the account, Donna testified that they only 

used the account for Decedent’s expenses, and Larry did not present any 

evidence to the contrary. N.T., 7/30/12, at 59.

In addition, the remaining 31 unaccounted for checks are de minimis 

in amount and the evidence shows they were inadvertently, not 

intentionally, destroyed by Donna when she was in the process of cleaning 

out her house in anticipation of moving. Orphans’ Court Opinion, 7/3/14, at 

4-5. From 2000 to 2009, the account shows 850 itemized expenses, 

including 825 checks totaling $277,232.27. In contrast, the 31 checks at 

issue amounted to $3,885.40, or less than one-and-a-half percent of the 

value of all checks issued. In light of the 818 other legitimate, uncontested 

transactions and the de minimis nature of the contested checks, we conclude 

that there was no evidentiary support in the record to support the finding 

that Donald breached any fiduciary duty or that a breach resulted in a loss to 

the Estate. See Bechtel, supra at 842; Warden, supra; Aiello, supra. 

Based on the foregoing, we conclude the orphans’ court erred when it 

imposed a surcharge on Donald. As Donald and Michael are now the 

prevailing parties, they may seek attorneys’ fees. See generally 42 

Pa.C.S.A. § 2503. Accordingly, we reverse the orphans’ court July 2, 2014 
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order, and remand for further proceedings on only Appellants’ post-trial 

motion for witness fees, costs of suit, and reasonable attorneys’ fees. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/6/2015