J-A32011-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: ESTATE OF HELEN E. 

BLUMBERGER, DECEASED, 

IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 

APPEAL OF: JOAN OLDEN, 

 Appellant No. 2070 WDA 2014 

Appeal from the Order December 15, 2014 

In the Court of Common Pleas of Allegheny County 

Orphans’ Court at No(s): 02-14-00386 

BEFORE: SHOGAN, OTT, and STABILE, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 23, 2015 

 Joan Olden (hereinafter “Appellant” or “The Executrix”), appeals from 

the order entered on December 15, 2014, that, inter alia, removed her as 

executrix of her mother’s estate (“the estate”). After careful review, we 

affirm in part, vacate in part, and remand with instructions. 

 The orphans’ court set forth the relevant facts and procedural history 

of this matter as follows: 

 This matter came before the Court on a Petition for 

Removal of Executrix and a Motion to Dismiss Rule to Show 

Cause Why Executrix should not be removed. A hearing was held 

on the Petition and Motion on December 8, 2014. On December 

15, 2014, the Court issued an Order granting the Petition for 

Removal and denying the Motion to Dismiss. The Executrix filed 

a Notice of Appeal and this appeal follows. 

Helen E. Blumberger [(“the Decedent”)] died testate on 

December 4, 2013. On January 30, 2014, the Decedent’s Will 
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dated August 23, 1973 was admitted to probate and Letters 

Testamentary were granted to [Appellant], who is one of the 

Decedent’s three daughters. The Decedent’s other two daughters 

(Bette A. [Blumberger] Saltzman and Diane J. Blumberger), 

along with [Appellant], are the three residuary legatees named 

in the Will. 

According to the evidence presented at the hearing, the 

primary asset in the estate is stock owned by the Decedent in a 

closely-held corporation, known as Universal Builders Supply 

Company, Inc. (UBS). The Decedent owned 52% of the stock 

and the remaining 48% was owned by the three residuary 

legatees, in equal shares. (N.T. 12/08/14, p. 5) 

Greg Palmieri, who has been the accountant for UBS since 

2006 (although his firm has been involved with the business for 

many years), testified that the corporation is basically a holding 

company. The assets are securities, approximately twenty 

developed lots, and cash. According to Exhibit 1, the fair market 

value of the assets in the corporation as of the date of death was 

approximately $8,800,000. (N.T. 12/08/14, pp. 11-17) Mr. 

Palmieri also testified that the Decedent and [Appellant] took 

significant loans from the corporation. Specifically, [Appellant] 

owed the corporation over $372,000 as of the date of death, 

plus approximately $80,000 in interest. No loans were made to 

Ms. Saltzman and Ms. Blumberger owed less than $400. The 

Decedent executed a Promissory Note for the loans, but 

[Appellant] refused to do so. (12/08/14, pp. 19-32)

Under the PEF Code [(Probate, Estates and Fiduciaries 

Code, 20 Pa.C.S.A., § 101 et seq.)], the Court has the exclusive 

power to remove a personal representative for stated reasons or 

“when, for any other reason, the interests of the estate are likely 

to be jeopardized by his continuance in office”. 20 Pa.C.S.A. 

§3182. In this case, [Appellant], the Executrix, lists her 

residence as New York City, although it is believed that she 

actually resides most of the year in Switzerland. [Appellant] did 

not appear at the hearing, so she could not be questioned about 

her residence. Her failure to appear was, apparently, on the 

advice of counsel, who did not seek court approval to excuse her 

appearance; but rather, counsel took it upon himself to decide 

that [Appellant] did not have to appear at a hearing seeking her 

removal. This advice was erroneous, as it led the Court to 

believe that she was not interested in the proceedings or she has 
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something to hide and did not want to be subjected to 

examination in open court. 

In addition, as indicated above, [Appellant] owes over 

$450,000 to the corporation for loans that were taken between 

1998 and 2004. [Appellant] has a fiduciary responsibility to the 

estate; however, she is also a serious creditor of the estate. The 

Court believes that this demonstrates a conflict of interest, which 

could potentially jeopardize the assets of the estate. 

Orphans’ Court Opinion, 2/2/15, at unnumbered 1-3. 

 The orphans’ court removed Appellant as executrix of the estate, 

denied Appellant’s motion to dismiss, directed the Orphans’ Court 

Department of Court Records to appoint a successor administrator or 

administratrix, and scheduled a status conference. Appellant filed a timely 

appeal, and on appeal, Appellant raises five issues that are set forth 

verbatim as follows: 

I. Whether the lower court abused its discretion when it granted 

the Petition for Removal of Executrix and revoked the Letters 

Testamentary issued by the Allegheny County Department of 

Court Records in the absence of clear and convincing evidence of 

any substantial reason for removal. 

II. Whether the lower court made an error of law and abused its 

discretion by admitting classic hearsay as evidence for the 

reason that it was not being admitted to prove the truth of the 

matter asserted and then relying on said evidence to conclude 

that the Appellant had a conflict of interest as a serious creditor 

(sic) of the Estate. 

III. Whether the lower court abused its discretion and made an 

error of law by revoking Appellant’s Letters Testamentary based 

on a finding of conflict of interest which could potentially 

jeopardize the assets of the Estate when the record contains no 

competent evidence of any conflict between the Appellant’s 

personal affairs and the affairs of the Estate. or the likelihood of 
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waste or mismanagement jeopardizing the assets of the Estate 

or actual proof of a breach of fiduciary duty. 

IV. Whether the lower court abused its discretion and made an 

error of law by revoking Appellant’s Letters Testamentary 

because it believed she was a resident of Switzerland and was 

not interested in the proceedings when the record is void of any 

evidence of either and paragraph 7.3 of the Decedent’s Last Will 

and testament explicitly provides that no bond be required of 

any personal representative 20 Pa.C.S.A. § 3174 (b)(1)(ii). 

V. Whether the lower court abused its discretion and made an 

error of law by directing the Department of Court Records 

Orphans’ Court, to appoint a successor Administrator/ 

Administratrix within twenty (20) days in a Testate Estate. 

Appellant’s Brief at 3-5 (“(sic)” in original). 

 In her first four issues, Appellant argues that the orphans’ court erred 

in removing her as executrix. We note that “The removal of an executrix is 

a matter vested in the sound discretion of the [orphans’] court, and thus we 

will disturb such a determination only upon a finding of an abuse of that 

discretion.” In re Estate of Mumma, 41 A.3d 41, 49 (Pa. Super. 2012). 

The court has statutory authority to remove a personal 

representative when, inter alia, “the interests of the estate are 

likely to be jeopardized by his continuation in office.” 20 

Pa.C.S.A. § 3182(5). Furthermore, the court may summarily 

remove a personal representative when such action is 

“necessary to protect the rights of creditors or parties in 

interest.” 20 Pa.C.S.A. § 3183. Our case law has recognized that 

“removal of a fiduciary is a drastic action which should be taken 

only when the estate is endangered and intervention is 

necessary to protect the property of the estate.” In re Estate of 

Pitone, 489 Pa. 60, 68, 413 A.2d 1012, 1016 (1980) (quoting 

Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 295, 270 

A.2d 216, 224 (1970)). 

In re Estate of Westin, 874 A.2d 139, 142-143 (Pa. Super. 2005). 
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 Appellant first claims that there was no clear and convincing evidence 

of any substantial reason for her removal. We disagree. 

 Sufficient reason for removal of a fiduciary has been found 

when the fiduciary’s personal interest is in conflict with that of 

the estate, such that the two interests cannot be served 

simultaneously. In re Estate of Dobson, 490 Pa. 476, 483 n. 6, 

417 A.2d 138, 142 n.6 (1980); In re Estate of Lux, 480 Pa. 

256, 269-71, 389 A.2d 1053, 1059-60 (1978); In re Estate of 

Rafferty, 377 Pa. 304, 305-06, 105 A.2d 147, 148 (1954). The 

reasons for removal of a fiduciary must be clearly proven. Lux, 

supra at 269, 389 A.2d at 1059; Scientific Living, supra at 

295, 270 A.2d at 224. However, proof of a conflict of interest 

can be inferred from the circumstances. See In re Estate of 

Gadiparthi, 158 Pa.Cmwlth. 537, 632 A.2d 942, 946 (1993) 

(ordering removal of an administrator, based on conflict of 

interest, after he challenged decedent’s ownership of property 

titled in decedent’s name). When a conflict of interest is 

apparent from the circumstances, bad faith or fraudulent intent 

on the part of the fiduciary need not be proven. Dobson, supra

at 483 n. 6, 417 A.2d at 142 n. 6 (citing In re Estate of Banes, 

452 Pa. 388, 395, 305 A.2d 723, 727 (1973); In re Estate of 

Noonan, 361 Pa. 26, 32-33, 63 A.2d 80, 84 (1949)). 

Westin, 874 A.2d at 143. 

As the orphans’ court pointed out, Appellant owed UBS, the primary 

asset in the estate, more than $372,000.00, plus approximately $80,000.00 

in interest. Orphans’ Court Opinion, 2/2/15, at unnumbered 2. The 

orphans’ court found that “[Appellant] has a fiduciary responsibility to the 

estate; however, she is also a serious creditor of the estate. The Court 

believes that this demonstrates a conflict of interest, which could potentially 

jeopardize the assets of the estate.” Orphans’ Court Opinion, 2/2/15, at 

unnumbered 3. We agree. The unpaid debt to UBS undoubtedly places 

Appellant in the position of a creditor to the largest asset of the estate. As 
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Appellant’s interests as a creditor are adverse to UBS and jeopardize the 

value of the estate, we discern no abuse of discretion in the orphans’ court 

finding a conflict of interest and removing Appellant as executrix. Westin, 

874 A.2d at 142; 20 Pa.C.S. § 3182(5). 

 In her second issue, Appellant argues that the orphans’ court erred by 

admitting hearsay into evidence and relying on it to conclude that Appellant 

had a conflict of interest. Specifically, Appellant claims that witnesses 

Dorothy Kirsch and Greg Palmieri, of the accounting firm of R.D. Hoag & 

Associates1 who provided accounting services to UBS, testified based on 

documents prepared by other persons, and the orphans’ court permitted this 

hearsay testimony and relied on it in making its decision. Appellant’s Brief 

at 17-19. 

 “When we review a trial court ruling on admission of evidence, we 

must acknowledge that decisions on admissibility are within the sound 

discretion of the trial court and will not be overturned absent an abuse of 

discretion or misapplication of law.” Stumpf v. Nye, 950 A.2d 1032, 1035-

1036 (Pa. Super. 2007). “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 or the 

____________________________________________ 

1

 Mr. Palmieri testified that R.D. Hoag & Associates had performed 

accounting services for UBS since as early as 1999. N.T., 12/8/14, at 11-12. 
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record, discretion is abused.” Id. (quoting Geise v. Nationwide Life and 

Annuity Co. of America, 939 A.2d 409, 417 (Pa. Super. 2007) (quotations 

omitted)). 

 Hearsay is defined as an out-of-court statement offered to prove the 

truth of the matter asserted. Pa.R.E. 801(c). This rule, however, is not 

absolute, and there are exceptions. Records of a regularly conducted 

activity is one such exception that is defined in Pa.R.E. 803(6) as follows: 

Exceptions to the Rule Against Hearsay--Regardless of

Whether the Declarant Is Available as a Witness 

* * * 

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness: 

* * * 

(6) Records of a Regularly Conducted Activity. A record (which 

includes a memorandum, report, or data compilation in any 

form) of an act, event or condition if, 

(A) the record was made at or near the time by--or 

from information transmitted by--someone with 

knowledge; 

(B) the record was kept in the course of a regularly 

conducted activity of a “business”, which term 

includes business, institution, association, 

profession, occupation, and calling of every kind, 

whether or not conducted for profit; 

(C) making the record was a regular practice of that 

activity; 

(D) all these conditions are shown by the testimony

of the custodian or another qualified witness, or by a 
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certification that complies with Rule 902(11) or (12) 

or with a statute permitting certification; and 

(E) neither the source of information nor other 

circumstances indicate a lack of trustworthiness. 

Pa.R.E. 803(6)(A)-(E). 

 Here, Mr. Palmieri and Ms. Kirsch testified that in providing accounting 

services to UBS, they relied on records kept in the regular course of business 

to determine the debt Appellant owed to UBS. N.T., 12/8/14, at 25. These 

records, which were admitted into evidence, consisted of ledgers, bank 

statements, check registers, and other documents kept by R.D. Hoag & 

Associates in the file it maintained for UBS. N.T., 12/8/14, at 28-33, 58-76. 

Under the business records exception provided in Pa.R.E. 803(6), UBS’s 

records of loans to Appellant were properly admitted as an exception to 

hearsay.2 Accordingly, there was no abuse of discretion or error of law in 

____________________________________________ 

2

 We note that these records would also have been admissible under 42 

Pa.C.S. § 6108, which provides as follows: 

(a) Short title of section.--This section shall be known and 

may be cited as the “Uniform Business Records as Evidence Act.” 

(b) General rule.--A record of an act, condition or event shall, 

insofar as relevant, be competent evidence if the custodian or 

other qualified witness testifies to its identity and the mode of its 

preparation, and if it was made in the regular course of business 

at or near the time of the act, condition or event, and if, in the 

opinion of the tribunal, the sources of information, method and 

time of preparation were such as to justify its admission. 

(Footnote Continued Next Page) 
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the orphans’ court admission of these documents into evidence or in its 

reliance on them in reaching its decision. 

 Next, Appellant avers that the orphans’ court abused its discretion and 

made an error of law in finding a conflict of interest because the record 

contains no competent evidence of any conflict between Appellant’s personal 

affairs and the affairs of the estate. Appellant’s Brief at 19. We disagree. 

As noted above, the testimony of Mr. Palmieri and Ms. Kirsch was 

properly admitted. Their testimony revealed unpaid debt of more than 

$400,000.00 from Appellant to UBS, which was the largest asset in the 

estate. Because we have concluded that the aforementioned testimony was 

properly admitted, we discern no error in the orphans’ court relying on said 

testimony in reaching its decision. We reiterate, because Appellant’s 

interests as a creditor are adverse to UBS and jeopardize the value of the 

estate, there was no abuse of discretion in the orphans’ court finding a 

conflict of interest and removing Appellant as executrix. Westin, 874 A.2d 

at 142; 20 Pa.C.S. § 3182(5).3

(Footnote Continued) _______________________ 

(c) Definition.--As used in this section “business” includes 

every kind of business, profession, occupation, calling, or 

operation of institutions whether carried on for profit or not. 

42 Pa.C.S. § 6108. 

3

 Appellant’s argument on this issue, wherein she claims that there was no 

demand made for repayment of the loans and no damage to the estate, 

Appellant’s Brief at 23, are contradicted by the record. The record reveals 

(Footnote Continued Next Page) 
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In her fourth issue on appeal, Appellant argues that the orphans’ court 

abused its discretion and made an error of law by removing her as executrix 

because it believed she was a resident of Switzerland and was not interested 

in the proceedings.4 We conclude that Appellant’s argument is misplaced. 

Appellant cites no authority for the proposition that the orphans’ court 

abused its discretion in concluding that Appellant’s failure to attend the 

proceedings was indicative of Appellant’s lack of interest in the proceedings 

or that she sought to avoid examination in open court. Orphans’ Court 

Opinion, 2/2/15, at unnumbered 3. Moreover, the orphans’ court’s 

consideration of Appellant’s failure to attend the hearing was not the basis 

for its decision; it was merely a factor, as Appellant’s outstanding debt to 

UBS was the focus of the orphans’ court decision. See id. at unnumbered 1-

3 (“[Appellant] is also a serious creditor of the estate. The Court believes 

(Footnote Continued) _______________________ 

Mr. Palmieri testified that the funds paid to Appellant were loans. N.T., 

12/8/14, at 19. He stated that if the funds were considered otherwise, they 

would be subject to tax, IRS scrutiny as to whether there was a second class 

of stock, and exposure to the IRS revoking S corporation status and placing 

UBS in C corporation status with significantly greater tax liability. Id. at 20. 

Mr. Palmieri also testified that Appellant was asked to sign a promissory note 

memorializing the debt, and she refused. Id. at 22. Accordingly, 

Appellant’s argument is specious; Appellant refused to acknowledge the 

debt, the necessity to repay it, and exposed the corporation to significant 

detrimental tax ramifications. 

 

4

 Appellant states that no bond was required pursuant to her mother’s will 

and 20 Pa.C.S. § 3174 (b)(1)(ii). We point out that the orphans’ court did 

not require Appellant to post a bond; thus, no further discussion of 20 

Pa.C.S. § 3174 is necessary. 
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that this demonstrates a conflict of interest, which potentially could 

jeopardize the assets of the estate.”). As discussed above, the orphans’ 

court may remove an executrix for a conflict of interest under 20 Pa.C.S. § 

3182(5), and that decision is left to the discretion of the orphans’ court. 

Mumma, 41 A.3d at 49; Westin, 874 A.2d 139 at 143. We discern no 

abuse of discretion and conclude that Appellant is entitled to no relief on this 

issue. 

Finally, Appellant argues that the orphans’ court abused its discretion 

and made an error of law by directing the department of court records to 

appoint a successor Administrator/Administratrix. Appellant’s Brief at 25. 

Appellant avers that this was improper because it is a testate estate. Id. 

After careful consideration, we agree, and we vacate and remand with 

instructions. 

Procedure for and effect of removal 

The court on its own motion may, and on the petition of 

any party in interest alleging adequate grounds for removal 

shall, order the personal representative to appear and show 

cause why he should not be removed, or, when necessary to 

protect the rights of creditors or parties in interest, may 

summarily remove him. Upon removal, the court may direct 

the grant of new letters testamentary or of administration

by the register to the person entitled and may, by summary 

attachment of the person or other appropriate orders, provide 

for the security and delivery of the assets of the estate, together 

with all books, accounts and papers relating thereto. Any 

personal representative summarily removed under the provisions 

of this section may apply, by petition, to have the decree of 

removal vacated and to be reinstated, and, if the court shall 

vacate the decree of removal and reinstate him, it shall 
J-A32011-15 

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thereupon make any orders which may be appropriate to 

accomplish the reinstatement. 

20 Pa.C.S. § 3183 (emphasis added). 

In In re Estate of Andrews, 92 A.3d 1226 (Pa. Super. 2014), a 

panel of this Court addressed a similar scenario where the decedent died 

testate, but the orphans’ court, after removing an executrix, directed the 

appointment of an administratrix. This Court held that was error. Id. at 

1234. 

 The Andrews Court explained: 

It is fundamental estate law that letters testamentary are issued 

when the decedent leaves a will while letters of administration 

are issued when the decedent dies intestate. An executor(rix) is 

the person named in the will to act as personal representative 

while an administrator(rix) is the personal representative when 

the decedent died intestate. Section 3183 pertains to the 

removal of a personal representative in general and, accordingly, 

to the removal of either an executor(trix) or administrator(rix). 

Thus, the language in that section necessarily provides that, 

upon removal, the court is authorized to direct the grant of 

letters testamentary or of administration, as the case may be. 

This verbiage, however, does not provide authority for the 

orphans’ court to disregard the strictures regarding who is 

entitled to serve as the personal representative of an estate. 

Under section 3155 of the Probate, Estates, and Fiduciaries 

Code, the following persons are delineated as eligible to be 

granted letters: 

(a) Letters testamentary.—Letters testamentary 

shall be granted by the register to the executor 

designated in the will, whether or not he has 

declined a trust under the will. 

(b) Letters of administration.—Letters of 

administration shall be granted by the register, in

such form as the case shall require, to one or more
J-A32011-15 

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of those hereinafter mentioned and, except for good

cause, in the following order: 

(1) Those entitled to the residuary estate 

under the will. 

(2) The surviving spouse. 

(3) Those entitled under the intestate 

law as the register, in his discretion, shall 

judge will best administer the estate, 

giving preference, however, according to 

the sizes of the shares of those in this 

class. 

(4) The principal creditors of the 

decedent at the time of his death. 

(5) Other fit persons. 

20 Pa.C.S. § 3155. 

Andrews, 92 A.3d at 1234 (emphasis added). 

Thus, because the Decedent died testate, letters testamentary must 

issue. Andrews, 92 A.3d at 1234. In this regard, the Decedent’s will 

provided for an executor and potential substitute executrices as follows: 

ARTICLE VII 

Executor 

Section 7.1 Appointment. I appoint my husband, BEN A. 

BLUMBERGER, Executor of this my Will. In the event of the 

inability or unwillingness of my husband to serve or to continue 

to serve as my Executor, I appoint as successor Executrix my 

daughter, [Appellant], if she is willing and able to serve; if she is 

not, I appoint my daughter, DIANE JULIA BLUMBERGER, if she is 

willing and able to serve; if she is not, I appoint my daughter, 

BETTE A. BLUMBERGER. 
J-A32011-15 

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The Decedent’s Will, 8/23/73, at 9, Article VII, Section 7.1 (Certified Record 

at 2). 

“Thus, the people who can serve as personal representatives are 

limited to those who are designated in the will.” Andrews, 92 A.3d at 

1234 (emphasis added). As noted above, the will states that if Appellant 

cannot serve as executrix, the Decedent’s daughter Diane shall serve in this 

capacity, and if Diane is unwilling or unable, then the Decedent’s daughter 

Bette shall serve. Accordingly, because the list of potential executrices has 

not been exhausted, it was error for the orphans’ court to direct the 

appointment of an administrator because viable substitute executrices 

remain in the Decedent’s will. 

For the reasons set forth above, we affirm the orphans’ court’s 

removal of Appellant as executrix of the Decedent’s estate. However, we 

vacate that part of the order which directed the appointment of an 

administrator or administratrix. We remand this matter to the orphans’ 

court for a determination as to whether Diane Blumberger is willing and able 

to serve as executrix, and if she is not, the orphans’ court shall then 

determine if Bette A. Blumberger Saltzman is willing and able to serve as 

executrix. If neither Diane Julia Blumberger nor Bette A. Blumberger 

Saltzman can serve as executrix, the orphans’ court shall then direct the 

appointment of an administrator or administratrix as provided in 20 Pa.C.S. 

§ 3155. 
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Order affirmed in part and vacated in part. Case remanded with 

instructions. Jurisdiction is relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

DATE: 12/23/2015