In re Estate of Cherwinski

856 A.2d 165, 2004 Pa. Super. 305, 2004 Pa. Super. LEXIS 2343

• Court: Superior Court of Pennsylvania
• Decided: August 4, 2004
• Status: Published

Opinions

DEL SOLE, P.J.

¶ 1 Diane Trigilia appeals from the court order directing her to return certain assets and pay a sum of $37,544.74 to her mother’s estate. Upon review, we affirm.

¶2 Anna Cherwinski (Decedent) died November 9, 1995, leaving no spouse and five children: Anthony, James, Frederick, Dennis and Diane. Following Decedent’s death, Diane (Appellant) administered the Decedent’s Estate without authorization from the court until June 27,1997. Appellant acknowledged that she administered the Estate of the Decedent without court authority following Decedent’s death.

¶ 3 On June 27, 1997, Appellant was appointed the personal representative of the Estate, after which time she administered the Estate with court authorization until her resignation on June 9, 2000. Her last act as personal representative was filing a Formal Account and Schedule of Distribution on June 5, 2000.

¶ 4 Frederick and Dennis each filed objections to the Account on July .10, 2000. In December of 2000, Dennis filed a Petition to Turn Over Assets consisting of $12,000.00 and other personal property. After a hearing on the objections to the Account, the court appointed Dennis, the Petitioner, as the personal representative of the Estate on August 11, 2000. On August 8, 2001, upon stipulation of the parties, the court ordered Appellant to turn over a crystal chandelier and deposit $12,000.00 into an escrow account held jointly between counsel for Dennis and Diane.

¶ 5 An order was entered on February 3, 2003, which surcharged Appellant the sum of $37,544.74, with a credit in the amount of $12,000.00 for money previously deposited into the escrow account, resulting in Appellant being required to pay the Estate a total of $25,544.74. Additionally, the Order directed Appellant to return various personal property to the Representative of the Estate and to have the Estate file turned over to Dennis. Appellant filed the present appeal.

¶ 6 On appeal, Appellant presents the following issues for our review:

A. Did the Lower Court commit an error of law and/or a manifest abuse of discretion by concluding that Appellant breached her fiduciary duties?

B. Did the Lower Court commit an error of law and/or a manifest abuse of discretion by wrongfully concluding that assets were misappropriated by the Executrix?

C. Did the Lower Court commit an error of law and/or a manifest abuse of discretion by not finding that the personal representative committed perjury in his testimony?

D. Did the Lower Court commit an error of law and/or a manifest abuse of discretion where the 'records [sic] does not support drastic action of surcharging the former personal representative?

Appellant’s Brief at 2.

¶ 7 Before we address Appellant’s issues, we must first determine whether the trial court order in this case is a final order subject to our review. We may raise the issue of appealability sua sponte because it affects ¹ our jurisdiction over the case. See In re Estate of Borkowski, 794 A.2d 388, 389 (Pa.Super.2002).

¶8 An appeal must be taken from a final order. Borkowski, 794 A.2d at 389. Under Pa.R.A.P. 341, an order is final if it disposes of all claims and all parties. In a decedent’s estate, generally the confirmation of the final account of the personal representative represents the final order, subject to exceptions being filed and disposed of by the court. Id. at 390.¹

¶ 9 Here we are confronted with an order imposing a surcharge on the personal representative of an estate. The Pennsylvania Supreme Court has stated that in estate cases where a decree orders the executor to charge himself in the account with a specified sum, this being equivalent to a surcharge, that decree is appealable. In re Williams’ Estate, 338 Pa. 98, 12 A.2d 103, 105 (1940); see also In re Estate of Donsavage, 420 Pa. 587, 218 A.2d 112, 116 (1966). Additionally, this Court has addressed the merits of appeals from orders imposing, or denying requests for imposition of, a surcharge in estate cases. See In re Estate of Schultheis, 747 A.2d 918 (Pa.Super.2000); In re Estate of Harrison, 745 A.2d 676 (Pa.Super.2000); In re Estate of Campbell, 692 A.2d 1098 (Pa.Super.1997); In re Estate of Geniviva, 450 Pa.Super. 54, 675 A.2d 306 (1996); In re Shahan, 429 Pa.Super. 91, 631 A.2d 1298 (1993).²

¶ 10 Thus, we find that an order imposing a surcharge on the personal representative of an estate is final as between the estate and the personal representative and is subject to immediate appeal. Therefore, we will address the merits of Appellant’s claims.

¶ 11 Our standard of review is well-settled in cases involving review of an orphans’ court decision:

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. However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts.

In re Estate of Schultheis, 747 A.2d 918, 922 (Pa.Super.2000).

¶ 12 Upon review of Appellant’s claims, the parties’ briefs, the record, and applicable law, we find that the opinion of the orphans’ court effectively addresses and disposes of Appellant’s first, second and fourth issues. Thus, we adopt the opinion of the orphans’ court to the extent that it addresses those issues and find that the orphans’ court neither committed an error of law nor abused its discretion in deciding these issues.

¶ 13 In her third claim, Appellant argues that the orphans’ court erred or abused its discretion by not finding that Dennis committed perjury in his testimony. Appellant’s Brief at 9. Accordingly, Appellant argues that Dennis’ testimony should not have been deemed credible by the orphans’ court. Id.

¶ 14 Because the Orphans’ Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion. In re Estate of Harrison, 745 A.2d 676, 678 (Pa.Super.2000). The orphans’ court found that within six months of his appointment as personal representative, Dennis cleaned and sold the real estate. Trial Court Opinion, 2/5/03, at 3. This was a feat that Appellant could not accomplish during the five years she administered the Estate. We find that the orphans’ court’s determinations are supported by competent and adequate evidence and we will not disturb on appeal its credibility determination on this basis.

¶ 15 Order affirmed.

¶ 16 Dissenting Opinion filed by Joyce, J.

1 . A related rule, Pa.R.A.P. 342, provides for the appealability of orders that determine "an interest in realty, personalty, the status of individuals or entities or an order of distribution not final” under other provisions of the Rules. Pa.R.A.P. 342. Under this Rule, such an order "shall constitute a final order upon a determination of finality by the Orphans’ Court Division.” Because the order imposing a surcharge does not fall within the enumerated categories, and because the order itself is final, we find that Rule 342 does not govern this matter.

2 . We also note that it is only practical that an order imposing a surcharge be immediately appealable. If such an order was not final and appealable, and the surcharged amount paid to the estate by the representative was in error, then the error may be impossible to correct if addressed after the estate has been distributed.