Estate of Oshiver

594 A.2d 746, 406 Pa. Super. 531, 1991 Pa. Super. LEXIS 2309
CourtSuperior Court of Pennsylvania
DecidedAugust 8, 1991
DocketNo. 2216
StatusPublished

This text of 594 A.2d 746 (Estate of Oshiver) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Oshiver, 594 A.2d 746, 406 Pa. Super. 531, 1991 Pa. Super. LEXIS 2309 (Pa. Ct. App. 1991).

Opinion

KELLY, Judge:

In this opinion, we are called upon to determine whether the trial court may terminate a four year temporary trusteeship over the estate of an alleged absentee in light of the fact that there had never been any attempt by the appellant [534]*534to pursue the appointment of a permanent trustee. We find that the trial court properly found that the temporary trusteeship had been in place for an excessive length of time and correctly terminated the temporary trusteeship pursuant to 20 Pa.C.S.A. § 5702(c) in favor of an appointment of a permanent trustee.

The relevant facts can be summarized as follows. On May 19, 1982, the appellant, Sylvia Oshiver, obtained a judgment for $46,984.64 in child support arrearages against her husband, Albert Herman Oshiver, a former federal employee who had allegedly disappeared in 1968. The appellant then attempted to garnish and execute against Mr. Oshiver’s federal pension. The United States refused to allow the execution to proceed. The appellant sought a writ of mandamus directing the United States to pay the entire judgment. The federal district court held that the appellant was not entitled to recover Mr. Oshiver’s pension contributions to satisfy the judgment for child support arreagages where no application for retirement benefits had been filed with the Office of Personnel Management (OPM) by any person. See Oshiver v. United States, 618 F.Supp. 172 (E.D.Pa.1985). The appellant then filed an application for her husband’s retirement benefits with OPM on September 19, 1985.

While the appellant’s application for Mr. Oshiver’s retirement benefits was pending, the appellant was informed by OPM on June 12, 1986, that unless a trustee was appointed by June 30, 1986, the appellant’s application for Mr. Oshiver’s retirement benefits would be dismissed. The appellant then filed a petition for the appointment of a temporary trustee pursuant to 20 Pa.C.S.A. § 5702(c) in the Common Pleas Court of Philadelphia County, Orphan’s Court Division. On June 26, 1986, the Honorable Theodore Gutowicz appointed Sherry J. Oshiver, Esquire, temporary trustee for the estate of her father, Albert Oshiver, pending the appointment of a permanent trustee pursuant to 20 Pa.C.S.A. § 5702(a).

[535]*535Shortly thereafter, 0PM denied the appellant’s application for Mr. Oshiver’s retirement benefits. The appellant and the temporary trustee appealed OPM’s decision to the Merit Systems Protection Board. The Merit Systems Protection Board held that neither the appellant nor the temporary trustee had standing to file an application for Mr. Oshiver’s retirement benefits. The appellant and the temporary trustee filed an appeal to the United States Court of Appeals. In 1989, while the appeal was pending before the United States Court of Appeals, but after oral argument, the temporary trustee filed a separate application for Mr. Oshiver’s retirement benefits. The United States Court of Appeals held that a missing employee’s wife did not have authority to apply for retirement benefits on the missing employee’s behalf. However, the Court made no determination on whether the temporary trustee could apply for Mr. Oshiver’s retirement benefits because the temporary trustee’s application for Mr. Oshiver’s retirement benefit was not part of the record. See Oshiver on Behalf of Oshiver v. Office of Pers. Man., 896 F.2d 540 (D.C.Cir 1990).

In May 1990, the temporary trustee received a letter from Judge Gutowicz’s law clerk. Enclosed with the letter was a copy of a letter from Joshua Eilberg, Esquire, to Judge Gutowicz. The letter informed Judge Gutowicz that Mr. Eilberg had spoken with Albert Oshiver and that he was not a missing person. The temporary trustee wrote Judge Gutowicz asking for clarification of the letter.

In response to the letter from the temporary trustee, Judge Gutowicz called for a hearing on June 22, 1990. Present at the hearing was David Freeman, Esquire, who entered an appearance for appellee, Albert Oshiver; Sherry Oshiver, the temporary trustee; and Sylvia Oshiver, representing herself pro se. Joshua Eilberg was also present at the hearing. Mr. Eilberg was not sworn in as a witness, but the judge did ask him about the letter and he confirmed its content. The judge then excused Mr. Eilberg without any further questioning. Sylvia Oshiver did not object to Mr. Eilberg’s dismissal by the trial court.

[536]*536At the close of the hearing, the judge terminated the temporary trusteeship. The court’s justifications for the termination were twofold: 1) the temporary trusteeship had gone on for four years and the appointment of a permanent trustee was recommended, and; 2) the judge believed that a conflict of interest existed because Sherry Oshiver was the temporary trustee, representing herself as trustee and the attorney representing Sylvia Oshiver and also she was beneficiary of the judgment for which the pension was sought. This timely appeal followed.

The appellant raises the following issues for our review: 1) whether appellant’s due process rights were violated at the hearing; 2) whether the termination of the temporary trusteeship was contrary to Pennsylvania law; and 3) whether the termination was improper because the evidence did not support the trial court’s ruling.

The appellant contends that her due process rights were violated because she was not given the opportunity to cross-examine Mr. Eilberg at the hearing. However, appellant raised no objection when the trial court excused Mr. Eilberg. Accordingly, we find that this issue has been waived because it was not raised at the hearing. See Commonwealth v. Hawkins, 295 Pa.Super. 429, 439, n. 6, 441 A.2d 1308, 1312, n. 6 (1982) (“Issues, even those of constitutional dimension, cannot be raised for the first time on appeal____”) See also Pa.R.A.P. 302(a).

Moreover, the trial court relied on other justifications for the termination, i.e. the excessive length of the temporary trusteeship and the need for a permanent trustee to be appointed. Therefore, Mr. Eilberg’s statement to the court that Mr. Oshiver was alive was not determinative of the trial court’s decision to terminate the temporary trusteeship.

The appellant’s next contention is that the termination of the temporary trusteeship is contrary to Pennsylvania law. Appellant argues that a temporary trustee cannot be terminated in the absence of a breach of fiduciary duty. Thus, [537]*537appellant asserts the trial court erred in terminating the temporary trustee. We disagree.

The removal of a trustee is a matter resting largely within the discretion of the court having jurisdiction over the trust, but an abuse of that discretion renders its exercise subject to review. In re Croessant’s Estate, 482 Pa. 188, 393 A.2d 443 (1978). However, there is a distinction between cases involving the removal of a court appointed trustee and those involving the removal of a testamentary trustee. In re Rentschler’s Estate, 392 Pa. 46, 139 A.2d 910 (1958).

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Related

Commonwealth v. Hawkins
441 A.2d 1308 (Superior Court of Pennsylvania, 1982)
In Re Estate of Croessant
393 A.2d 443 (Supreme Court of Pennsylvania, 1978)
Fraiman Estate
184 A.2d 494 (Supreme Court of Pennsylvania, 1962)
Estate of Gilbert
492 A.2d 401 (Supreme Court of Pennsylvania, 1985)
Rentschler Estate
139 A.2d 910 (Supreme Court of Pennsylvania, 1958)
Estate of Keefauver
518 A.2d 1263 (Supreme Court of Pennsylvania, 1986)
Corr Estate
58 A.2d 847 (Supreme Court of Pennsylvania, 1948)
Appeal of Esterly
109 Pa. 222 (Supreme Court of Pennsylvania, 1885)
Oshiver v. United States
618 F. Supp. 172 (E.D. Pennsylvania, 1985)

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Bluebook (online)
594 A.2d 746, 406 Pa. Super. 531, 1991 Pa. Super. LEXIS 2309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-oshiver-pasuperct-1991.