Estate of: Kuehner, F. Appeal of: Kuehner, P.

• Court: Superior Court of Pennsylvania
• Decided: August 28, 2014
• Docket: 3591 EDA 2013
• Status: Unpublished

Opinion

J-A20043-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF: FAYE P. KUEHNER, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: PAUL P. KUEHNER, : : Appellant : No. 3591 EDA 2013

Appeal from the Order entered on December 4, 2013 in the Court of Common Pleas of Montgomery County, Orphans' Court Division, No. 05-0825

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014

pro se, from the Order denying

his Petition to Remove the Individual Trustee. We affirm.

and Wachovia Bank as both the executors and trustees (collectively referred

entitled to receive a monthly income, and the Trustees had discretion to

distribute additional payments of the principal for his support, maintenance

principal at ages 35 and 40. J-A20043-14

In 2006, Kuehner, who has been unemployed for decades, purchased

real estate, valued at between $300,000 and $325,000, against the advice

of his legal counsel. The property was encumbered with over $25,000 in

debt, in addition to the outstanding mortgage. Due to a lack of funds,

Kuehner agreed to sell the property in 2008. As a result, the Trustees

agreed to pay Kuehner an additional $2,000 each month in addition to the

provided Kuehner with $5,000 to purchase a vehicle. Kuehner did not sell

the property, claiming that he had not received offers.

In 2012, First Niagara Bank replaced Wachovia Bank as the corporate

Trustees petitioned the court to convert the structure of the Trust so that

Kuehner could receive more money. During that time period, Kuehner

began to repeatedly call the New Trustees. Consequently, the trial court

ordered that Kuehner could contact the Trustees in writing, but could only

call them twice per month.

The New Trustees filed an Account of the Trust in 2013. Kuehner filed

Objections to that Account, which were overruled. Kuehner then challenged

a bill for $10,648, which was incurred when the New Trustees attempted to

convert the structure of the Trust. Most recently, Kuehner filed a Petition for

Removal of the Individual Trustee, Delaney. On December 4, 2013, the trial

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approving the challenged charge as reasonable. Kuehner filed a timely

Notice of Appeal.

On appeal, Kuehner raises the following questions for our review:

I. Did the [trial] court abuse its discretion or [err] in not asking [] Delaney to account for the money he billed the [T]rust?

II. Did the [trial] court abuse its discretion or [err] in not removing [] Delaney and replacing him with Mr. Jeffrey First

Brief for Appellant at 4 (issues renumbered for ease of disposition).

The standard of review in an appea

well-

In Re Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super.

2011) (citation omitted). Specifically,

[we] must determine whether the record is free of legal error

-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of discretion. However, we are not constrained to give the same deference to any resulting legal conclusions. Where the rules of law on which the court relied are palpably wrong or clearly

In re McKinney, 67 A.3d 824, 829 (Pa. Super. 2013).

In his first claim, Kuehner asserts that Delaney has consistently over-

billed the Trust. Brief for Appellant at 7. Specifically, he challenges the July

2012 charge for $10,648, and a September 2012 charge for $3,500. Id. at

7-8.

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However, Kuehner does not provide any pertinent analysis or cite to

any evidence regarding what Delaney was working on at the time, or what

he believes the charges should have been for that work. See Pa.R.A.P.

2119(a) (requiring each argument to be supported by discussion and citation

of pertinent authorities); see also Miller v. Miller, 744 A.2d 778, 788 (Pa.

establishing his entitlement to relief by showing that the ruling of the trial

this claim is waived on appeal. See J.J. DeLuca Co. v. Toll Naval Assocs.,

56 A.3d 402, 411 (Pa. Super. 2012) (stating that claims are waived where

an appellant does not develop an argument or cite to any authority to

support the claim).

In his second claim, Kuehner argues that Delaney should be removed

as Trustee for committing a serious breach of trust. Brief for Appellant at 5-

6. He also argues that the trial court told him that he could replace the

Trustee if he found someone else who is qualified. Id. at 5. Kuehner claims

that First is a trustworthy and honest person with 23 years of experience,

and that he should be allowed to take over as trustee. Id.

The Uniform Trust Act sets forth the grounds for removal of a trustee

as follows:

The court may remove a trustee if it finds that removal of the trustee best serves the interests of the beneficiaries of the trust and is not inconsistent with a material purpose of the trust, a suitable cotrustee or successor trustee is available and:

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(1) the trustee has committed a serious breach of trust;

(2) lack of cooperation among cotrustees substantially impairs the administration of the trust;

(3) the trustee has not effectively administered the

unwillingness or persistent failures; or

(4) there has been a substantial change of circumstances. A corporate reorganization of an institutional trustee, including a plan of merger or consolidation, is not itself a substantial change of circumstances.

20 Pa.C.S.A. § 7766(b).

Kuehner argues that Delaney committed a serious breach of trust by

over-billing the Trust and ignoring his phone calls. Brief for Appellant at 5-7.

As stated above, Kuehner did not provide an argument or cite any pertinent

authority with regard to the over-billing claims. See Pa.R.A.P. 2119(a); see

also J.J. DeLuca Co., 56 A.3d at 411. In any event, the trial court found

that the charges were reasonable. See Trial Court Order, 12/4/13. As to

the claim that Delaney ignores his phone calls, the trial court balanced

Trustees to conduct business, and Kuehner has not shown sufficient cause to

disturb that finding. See Trial Court Opinion, 9/7/12, at 9. Therefore,

Kuehner has not provided sufficient evidence to warrant removal of Delaney

as Individual Trustee.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/2014

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