Estate of Willa M. Dunn

• Court: Superior Court of Pennsylvania
• Decided: April 18, 2022
• Docket: 145 WDA 2021
• Status: Unpublished

Opinion

J-A06020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF WILLA M. DUNN, : IN THE SUPERIOR COURT OF DECEASED : PENNSYLVANIA : : APPEAL OF: JAMES F. DUNN : : : : : No. 145 WDA 2021

Appeal from the Order Dated January 13, 2021 In the Court of Common Pleas of Washington County Orphans' Court at No(s): No. 63-02-1284

BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: April 18, 2022

James F. Dunn (hereinafter “James”) appeals the order removing him

as co-executor of the estate of Willa M. Dunn. We affirm.

Willa Dunn died testate in 2002, and an estate was opened. In her will,

she named her two sons, James and Gregory Dunn (“Gregory”), as co-

executors of her estate. Each brother was appointed as co-executor of the

estate and, at various times, hired separate attorneys to assist them in their

executor duties. However, little was done by either brother to settle the

estate. Other than an inheritance tax payment of $110,000 made by Gregory

in 2003, no accounting, inheritance tax return, or status report was filed on

behalf of the estate, in violation of court rules and tax laws.

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* Retired Senior Judge assigned to the Superior Court. J-A06020-22

In 2004, Gregory petitioned to remove James as co-executor, citing

James’s repeated failures to assist with the administration of the estate,

including James’s unfulfilled promises to complete the estate inventory and

inheritance tax return. Gregory noted in his petition that, as a result of

James’s inaction, additional inheritance taxes might be owed by the estate,

resulting in penalties and interest. In 2005, the orphans’ court conducted a

hearing on the petition. At the conclusion of the hearing, the brothers agreed

to work together to auction off Willa’s personal property and file an inventory

and accounting. Contrary to the agreement, however, no auction occurred,

no inventory or accounting was filed, and more than a decade passed with no

activity on the estate.

In December 2019 and February 2020, Gregory sent letters to James

regarding the estate. James did not respond to either communication. In July

2020, Gregory filed another petition to remove James as co-executor, citing

James’s continued inaction and failure to cooperate or perform his executor

duties. Gregory alleged that James held approximately $200,000 in estate

assets in an IRA account and refused to disclose any information about such

assets, despite repeated requests. Gregory indicated that he wished to

complete the administration of the estate but could not do so without

information and cooperation from James to verify statements in an estate

inventory and inheritance tax return. The orphans’ court issued a rule

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requiring James to show cause at a hearing why the petition to remove him

should not be granted.

In September 2020, the orphans’ court conducted an initial hearing on

the petition but continued the hearing so that the brothers could conduct

discovery, prepare evidence in support of their positions, and/or try to

cooperate with each other to settle the estate. The hearing was initially

continued to November 2020, but was ultimately continued to January 11,

2021. Prior to that hearing date, Gregory sent discovery requests to James

regarding the IRA account and other assets. James did not respond to the

requests until the morning of the continued hearing date. James did not send

any discovery requests to Gregory or subpoena Gregory to attend the hearing.

At the January 11, 2021 hearing, the orphans’ court heard testimony

from James regarding his efforts to complete the administration of his

mother’s estate.1 James indicated that he thought “that [the estate] was

settled” and “we were done.” N.T., 1/11/21, at 13. James stated that his

relationship with Gregory was “tumultuous,” and that he had not spoken to

Gregory since his mother’s funeral in 2002. Id. at 12. James admitted that

he had made no effort to contact Gregory since seeing him in 2002, and

claimed that he “was happy if [he] didn’t have to ever talk to [Gregory] again.”

Id. at 13, 19. James further admitted that he had been unaware of the unpaid

1 Gregory did not attend the hearing due to a medical emergency; however, his counsel was present and participated in the proceeding.

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bills and claims against the estate, and “was waiting for somebody to ask

[him] to do something” regarding the administration of the estate. Id. at 27,

28. Finally, James indicated that he “never thought it was necessary” to

inquire about the history of an account of which he is the sole beneficiary (i.e.,

the IRA account). Id. at 24. At the conclusion of the hearing, the orphans’

court removed James as co-executor, and ordered him to cooperate with

Gregory to settle the estate. An order to that effect was filed on January 13,

2021.2 James filed a timely notice of appeal, and both he and the orphans’

court complied with Pa.R.A.P. 1925.3

James raises the following issues for our review:

1. Did the [orphans’] court commit an abuse of discretion and err as a matter of law in removing . . . James . . . as a co-executor and also in so doing, without considering the conduct of . . . co-executor Gregory . . .?

2. Did the [orphans’] court commit an abuse of discretion and err as a matter of law when it based its decision to remove . . . James . . . as a co-executor with a limited and incomplete

2 After James’s removal as co-executor, Gregory filed both a current inventory of the estate as well as an inheritance tax return, and was taking the necessary steps to ensure that his mother’s estate was settled in a timely and efficient manner. See Orphans’ Court Opinion, 9/13/21, at 10.

3 James filed a Rule 1925(b) concise statement listing fifteen errors committed by the orphans’ court, several of which are redundant and frivolous. See Concise Statement, 2/24/21, at 3-6. This Court could find waiver of all issues raised in the concise statement, despite the lower court’s decision to address them. See Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. 2008) (holding that, if an appellant fails to set forth a sufficiency concise and coherent statement in circumstances that suggest bad faith, waiver of all issues may result).

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record, without ever hearing any evidence or testimony from . . . Gregory . . ., so that the veracity of [James’] claims could be fully tested and [Gregory] be subjected to cross[- ]examination and the [c]ourt could consider or weigh the conduct of . . . Gregory . . . in his handling of the estate?

James’s Brief at 8.

Our standard of review of the findings of an orphans’ court is as follows:

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.

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

quotations, and unnecessary capitalization omitted).

The fitness of a personal representative to serve is a matter within the

exclusive jurisdiction of the orphans’ court. See 20 Pa.C.S.A. § 711(12).

Pennsylvania’s Probate, Estates, and Fiduciaries Code empowers the orphans’

court to remove a personal representative when the court finds that one or

more of certain enumerated circumstances exists. See id. § 3182. Relevant

to this case, removal is appropriate where the executor (1) “mismanages the

estate . . . or has failed to perform any duty imposed by law;” or (2) “when,

for any other reasons, the interests of the estate are likely to be jeopardized

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by his continuance in office.” Id. § 3182(1), (5). If a party petitions for

removal, the orphans’ court may order the executor to appear and show cause

why he should not be removed. Id. § 3183. The removal of a fiduciary is a

drastic action which should be taken only when the estate is endangered, and

intervention is necessary to prevent further waste or mismanagement of the

estate. See Matter of Estate of Frey, 693 A.2d 1349, 1352 (Pa. Super.

1997). The existence of ill-feeling between the personal representatives will

not, per se, serve as a ground for the removal of a personal representative

unless it is clear that such ill-feeling endangers the estate. See Scientific

Living, Inc. v. Hohensee, 270 A.2d 216 224 (Pa. 1970)

James discusses his issues as if they were a single issue.4 James argues

that since 2002 he has done nothing to prevent Gregory from preparing and

filing the estate inventory and inheritance tax return. James contends that,

as a co-executor, Gregory had the power to direct inquiries to third parties

about estate assets, including the IRA account under James’s control. James

vaguely asserts that he did provide information to Gregory about that account

but claims that it was “never good enough.” James’s Brief at 19. James

asserts that the fact that he could not give Gregory the “exact information”

that he requested is not grounds for his removal. Id. According to James,

the information that Gregory sought from him regarding the IRA account is

4 We note with disapproval that James was required to discuss his issues separately in his brief. See Pa.R.A.P. 2119(a).

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“not available,” and the court blamed James for the absence of this

information. Id. James asserts that, to this day, neither he nor Gregory have

been able to find any further information about the IRA account than the

information already supplied by James. James points out that, since his

removal as co-executor, Gregory was able to file an inheritance tax return

without the missing information.

James argues that if there was something that needed to be done for

the estate, his various counsel should have alerted him. 5 He indicates that,

at the time that one of his prior counsels for the estate died, James thought

that the estate was “done.”

James asserts that Gregory knows where he lives and how to contact

him but made no effort to do so prior to filing the 2020 petition to remove him

as co-executor. James concedes that his relationship with Gregory is

“tumultuous,” but argues that animosity between co-executors is not a basis

for removal. He further argues that he gave no indication to the court that he

could not work with Gregory to finalize the estate.

Finally, James contends that he assisted with the inheritance tax

payment of $110,000 in 2003, and that the orphans’ court unfairly awarded

Gregory sole credit for making that payment. James asserts that Gregory is

5We glean from the record that James hired a number of attorneys to counsel him with respect to the administration of his mother’s estate, and that, at some point not clear from the record, one such attorney passed away.

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equally at fault for permitting the estate to languish for so many years, and

the court should have required Gregory to testify at the 2021 hearing

regarding his own inaction. In James’s view, the orphans’ court blamed him

for everything that was deficient about the estate, while crediting Gregory for

everything positive about the estate.

The orphans’ court considered James’s issues and determined that they

lacked merit.6 The court found that James did not take the threshold steps to

ensure the effective administration of his mother’s estate in the nineteen years

he served as co-executor. The orphans’ court pointed to James’s testimony

at the 2021 hearing wherein he conceded that he (1) “thought we were done”

with the administration of the estate; (2) was unaware of the unpaid bills and

claims against the estate; (3) was “waiting for somebody to ask [him] to do

something” regarding the administration of the estate; and (4) “never thought

it was necessary” to inquire about the history of an account of which he is the

6 The orphans’ court questioned whether James had standing to appeal the order removing him as co-executor. Pursuant to Pa.R.A.P. 501, “any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.” To demonstrate that he or she is aggrieved, an individual must establish a substantial, direct and immediate interest in the proceeding. See In re Miller, 27 A.3d 987, 992-93 (Pa. 2011). Here, as a co-executor, James was a fiduciary of the estate. James is also a beneficiary of the estate. See In re Estate of Patrick, 409 A.2d 388, 390 n.2 (Pa. 1979) (noting that the executors of the estate had standing to appeal the order of the orphans’ court since they were parties aggrieved in their capacity as beneficiaries of the estate). Accordingly, we conclude that he is substantially, directly and immediately aggrieved by the order removing him as co-executor.

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sole beneficiary (i.e., the IRA account). Orphans’ Court Opinion, 9/13/21, at

10. The orphans’ court determined that Gregory sent numerous requests for

information to which James did not respond. Id. at 10. In the court’s opinion,

James exhibited “a pattern of mismanagement not likely rectified without [his]

removal.” Id. The court determined that James was “acting in complete

disregard to his fiduciary duty to the estate and made no effort to protect

estate interests since his appointment in 2002.” Id. at 11.

We discern no abuse of discretion by the orphans’ court in determining

that James failed to perform the duties imposed on him by law as co-executor

of his mother’s estate. See 20 Pa.C.S.A. § 3182(1). Although James claimed

that he and Gregory jointly made the inheritance tax payment of $110,000 in

2003, he points to no evidence in the record which shows that he assisted

with that payment. Moreover, James did not identify any other action that he

has taken since 2002 to administer his mother’s estate. James fails to

acknowledge his deficient stewardship and instead tries to redirect our

attention to Gregory’s inaction since 2002. However, simply pointing to

Gregory’s inaction does not excuse his own. On the record before us, it is

clear that since 2002, James made no effort to determine what responsibilities

he had as an executor or to discharge those responsibilities. See Estate of

Frey, 693 A.2d at 1352-53 (affirming the removal of executor who was

unaware of his responsibilities and exhibited a pattern of mismanagement not

likely to be rectified without his removal).

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We further conclude that the orphans’ court did not abuse its discretion

in finding that the interests of the estate were likely to be jeopardized if James

were to continue to serve as co-executor. See id. § 3182(a). The court was

presented with testimony and evidence that Gregory sent correspondence to

James in December 2019 and February 2020, and that James did not respond

to either communication. Further, at the 2021 hearing, James admitted that

he and Gregory had a “tumultuous” relationship, that he had not spoken to

Gregory since their mother’s funeral in 2002, and that he would be happy “if

I didn’t have to ever talk to him again.” N.T., 1/11/21, at 12, 13, 19. Given

that the brothers were unable to work together over the nineteen-year history

of the estate and that Gregory indicated a desire to complete the

administration of his mother’s estate, we cannot conclude that the court

abused its discretion in determining that if James continued to serve as co-

executor, the interests of the estate would not be further jeopardized.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2022

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