J-S25044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF IRENE G. : IN THE SUPERIOR COURT OF USCHOCK : PENNSYLVANIA : : APPEAL OF: WILLIAM USCHOCK : : : : : No. 23 WDA 2018
Appeal from the Order December 18, 2017 In the Court of Common Pleas of Westmoreland County Orphans' Court at No(s): 65-08-0671
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 24, 2018
William Uschock appeals, pro se, from the order entered December 18,
2017, in the Court of Common Pleas of Westmoreland County, which granted
his brothers’, Richard Uschock and David Uschock, petition to remove William
Uschock as co-executor of the estate of their deceased mother, Irene G.
Uschock (“Estate”) pursuant to 20 Pa.C.S. § 3128.1 William Uschock
complains the trial court erred in removing him as executor of the Estate.
Based upon the following, we affirm.
The facts underlying the Orphans’ Court’s order are as follows. On
March 16, 2008, Irene G. Uschock passed away. See Death Certificate,
____________________________________________
1The Orphans’ Court order is appealable under the collateral order doctrine. See Pa.R.A.P. 313; In re Estate of Mumma, 41 A.3d 41, n.1 (Pa. Super. 2012). J-S25044-18
3/19/2008, at 1. Her Will was probated and the Estate was opened on May
1, 2008. See Certification of Notice of Estate Administration, 5/19/2008. An
inheritance tax return was filed and accepted by the Pennsylvania Department
of Revenue on April 27, 2009. See Notice of Inheritance Tax Appraisement,
4/27/2009. The Estate is insolvent. See id.
Irene Uschock’s Will named her five children, Richard Uschock, David
Uschock, William Uschock, Diane Santmyer, and Patricia Glott as co-executors
and equal residuary beneficiaries of the Estate. See Last Will and Testament,
7/22/1991, at SECOND - THIRD. Patricia Glott, Diane Santmyer, and Richard
Uschock renounced their rights as executors, leaving David Uschock and
William Uschock as the remaining co-executors.2 See N.T., 12/14/17, at 5.
The principal assets of the Estate include several parcels of land in Mt.
Pleasant Township, including a farm, and a smaller plot of land containing a
furniture store and two other buildings. See id., at 6-7. The Will provided,
in pertinent part: “I direct that my co-executors get together to divide the
farm in a manner they can agree to or by majority vote.”3 Last Will and
Testament, 7/22/1991, at FOURTH.
2 Patricia Glott and Diane Santmyer are not a part of this appeal.
3 Due to the reluctance of the executors to pay for an appraisal of the assets, the values as stated on the Inheritance Tax Return were calculated by multiplying the assessed values by the common level ratio. See N.T., 12/14/17, at 18.
-2- J-S25044-18
Since the Estate was opened in 2008, no action has been taken to finalize and
close the Estate for approximately nine years, largely due to the reluctance of
William Uschock to cooperate in settling the Estate and paying its debts. See
id., at 62-63. His co-beneficiaries and co-executor approached him “dozens”
of times regarding the sale or lease of the large farm property, and he rejected
their proposals.4 Id. Meanwhile, he continued to occupy the property for his
own personal use.5 See id., at 40. To the present day, he cultivates the
farm, and uses the family furniture store to store his farming equipment and
to sell his personal fruits and vegetables. See id.
On multiple occasions, other beneficiaries attempted to discuss
solutions with William Uschock and were rejected. When approached about
listing the farm property, he continually insisted on delaying any potential
sale.6 See id., at 39. Richard Uschock testified that he attempted to hand
4There have been occasional rentals for the two residences on the smaller parcel. See N.T., 12/14/2017, at 26.
5 Richard Uschock testified he was not aware of any payments made by William Uschock to the Estate in exchange for the use of the land. See N.T., 12/14/2017, at 30. William Uschock disputed this and claimed that he used the funds from his use of the land to pay down the debts of the Estate, but the trial court found Richard Uschock’s testimony to be more credible. See id., at 76. William Uschock also claimed his use of the property was pursuant to an agreement with his father, who predeceased his mother. See id., at 42-43. Even if such an agreement existed, the provisions of the Will control the disposition of the farm.
6William Uschock claimed he wished to maximize the value of the Estate by waiting to sell until the “turnpike interchange… comes through,” which he
-3- J-S25044-18
his brother information about the valuation of the property, which William
Uschock refused to take. See id., at 54-55. Similarly, when the other
brothers identified a potential lessee for the farm property in the spring of
2017, William Uschock refused, told them he would be farming the land, and
refused to sign the lease. Id., at 28. He remained adamant even after the
family voted to go forward with the lease. See id., at 66-67.
Since 2008, the assets of the Estate were placed at risk on numerous
occasions due to its insolvency. Other family members were forced to pay
real estate taxes out-of-pocket in order to protect the real estate from a tax
sale. See N.T., 12/14/2017, at 8. Richard Uschock testified he received
notice several times that mortgage payments were delinquent. See id., at
31. Additionally, William Uschock’s placement of his farm equipment on the
furniture store parcel caused the family’s insurance provider to threaten to
rescind its coverage. See Loss Control Recommendations Letter, 6/21/2017,
at 1. The equipment was subsequently removed at the expense of the Estate.
See N.T., 12/14/2017, at 56.
On July 21, 2017, Richard and David Uschock petitioned for William
Uschock’s removal as co-executor of the Estate. The case proceeded to a
contended would “maybe triple” the value of the property. N.T., 12/14/2017, at 79-80. He relied on nothing but his own non-expert evaluation of the property’s future value to support this contention. See id., at 80-83.
-4- J-S25044-18
hearing on December 14, 2017. On December 18, 2017, the Orphans’ Court
issued an order removing him as co-executor. This pro se appeal followed.7
Before we address the merits of this appeal, we note the pro se brief
William Uschock submitted to this Court has substantial defects. See
Pa.R.A.P. 2111. It does not contain a statement of jurisdiction or a statement
of questions presented. See William Uschock’s Brief at 1-2. More importantly,
it fails to cite to authority entirely, and does not contain any meaningful
discussion of the issue raised. See id. It consists of two handwritten pages,
and baldly states that the Orphans’ Court acted “without an iota of evidence
to show cause,” without indicating where the evidence is lacking in the
reasoning.8 Id. at 2.
We are guided by the following: “When issues are not properly raised
and developed in briefs, when the briefs are wholly inadequate to present
specific issues for review[,] a Court will not consider the merits thereof.”
Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa. Super. 1993).
Moreover,
Free access — add to your briefcase to read the full text and ask questions with AI
J-S25044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: THE ESTATE OF IRENE G. : IN THE SUPERIOR COURT OF USCHOCK : PENNSYLVANIA : : APPEAL OF: WILLIAM USCHOCK : : : : : No. 23 WDA 2018
Appeal from the Order December 18, 2017 In the Court of Common Pleas of Westmoreland County Orphans' Court at No(s): 65-08-0671
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 24, 2018
William Uschock appeals, pro se, from the order entered December 18,
2017, in the Court of Common Pleas of Westmoreland County, which granted
his brothers’, Richard Uschock and David Uschock, petition to remove William
Uschock as co-executor of the estate of their deceased mother, Irene G.
Uschock (“Estate”) pursuant to 20 Pa.C.S. § 3128.1 William Uschock
complains the trial court erred in removing him as executor of the Estate.
Based upon the following, we affirm.
The facts underlying the Orphans’ Court’s order are as follows. On
March 16, 2008, Irene G. Uschock passed away. See Death Certificate,
____________________________________________
1The Orphans’ Court order is appealable under the collateral order doctrine. See Pa.R.A.P. 313; In re Estate of Mumma, 41 A.3d 41, n.1 (Pa. Super. 2012). J-S25044-18
3/19/2008, at 1. Her Will was probated and the Estate was opened on May
1, 2008. See Certification of Notice of Estate Administration, 5/19/2008. An
inheritance tax return was filed and accepted by the Pennsylvania Department
of Revenue on April 27, 2009. See Notice of Inheritance Tax Appraisement,
4/27/2009. The Estate is insolvent. See id.
Irene Uschock’s Will named her five children, Richard Uschock, David
Uschock, William Uschock, Diane Santmyer, and Patricia Glott as co-executors
and equal residuary beneficiaries of the Estate. See Last Will and Testament,
7/22/1991, at SECOND - THIRD. Patricia Glott, Diane Santmyer, and Richard
Uschock renounced their rights as executors, leaving David Uschock and
William Uschock as the remaining co-executors.2 See N.T., 12/14/17, at 5.
The principal assets of the Estate include several parcels of land in Mt.
Pleasant Township, including a farm, and a smaller plot of land containing a
furniture store and two other buildings. See id., at 6-7. The Will provided,
in pertinent part: “I direct that my co-executors get together to divide the
farm in a manner they can agree to or by majority vote.”3 Last Will and
Testament, 7/22/1991, at FOURTH.
2 Patricia Glott and Diane Santmyer are not a part of this appeal.
3 Due to the reluctance of the executors to pay for an appraisal of the assets, the values as stated on the Inheritance Tax Return were calculated by multiplying the assessed values by the common level ratio. See N.T., 12/14/17, at 18.
-2- J-S25044-18
Since the Estate was opened in 2008, no action has been taken to finalize and
close the Estate for approximately nine years, largely due to the reluctance of
William Uschock to cooperate in settling the Estate and paying its debts. See
id., at 62-63. His co-beneficiaries and co-executor approached him “dozens”
of times regarding the sale or lease of the large farm property, and he rejected
their proposals.4 Id. Meanwhile, he continued to occupy the property for his
own personal use.5 See id., at 40. To the present day, he cultivates the
farm, and uses the family furniture store to store his farming equipment and
to sell his personal fruits and vegetables. See id.
On multiple occasions, other beneficiaries attempted to discuss
solutions with William Uschock and were rejected. When approached about
listing the farm property, he continually insisted on delaying any potential
sale.6 See id., at 39. Richard Uschock testified that he attempted to hand
4There have been occasional rentals for the two residences on the smaller parcel. See N.T., 12/14/2017, at 26.
5 Richard Uschock testified he was not aware of any payments made by William Uschock to the Estate in exchange for the use of the land. See N.T., 12/14/2017, at 30. William Uschock disputed this and claimed that he used the funds from his use of the land to pay down the debts of the Estate, but the trial court found Richard Uschock’s testimony to be more credible. See id., at 76. William Uschock also claimed his use of the property was pursuant to an agreement with his father, who predeceased his mother. See id., at 42-43. Even if such an agreement existed, the provisions of the Will control the disposition of the farm.
6William Uschock claimed he wished to maximize the value of the Estate by waiting to sell until the “turnpike interchange… comes through,” which he
-3- J-S25044-18
his brother information about the valuation of the property, which William
Uschock refused to take. See id., at 54-55. Similarly, when the other
brothers identified a potential lessee for the farm property in the spring of
2017, William Uschock refused, told them he would be farming the land, and
refused to sign the lease. Id., at 28. He remained adamant even after the
family voted to go forward with the lease. See id., at 66-67.
Since 2008, the assets of the Estate were placed at risk on numerous
occasions due to its insolvency. Other family members were forced to pay
real estate taxes out-of-pocket in order to protect the real estate from a tax
sale. See N.T., 12/14/2017, at 8. Richard Uschock testified he received
notice several times that mortgage payments were delinquent. See id., at
31. Additionally, William Uschock’s placement of his farm equipment on the
furniture store parcel caused the family’s insurance provider to threaten to
rescind its coverage. See Loss Control Recommendations Letter, 6/21/2017,
at 1. The equipment was subsequently removed at the expense of the Estate.
See N.T., 12/14/2017, at 56.
On July 21, 2017, Richard and David Uschock petitioned for William
Uschock’s removal as co-executor of the Estate. The case proceeded to a
contended would “maybe triple” the value of the property. N.T., 12/14/2017, at 79-80. He relied on nothing but his own non-expert evaluation of the property’s future value to support this contention. See id., at 80-83.
-4- J-S25044-18
hearing on December 14, 2017. On December 18, 2017, the Orphans’ Court
issued an order removing him as co-executor. This pro se appeal followed.7
Before we address the merits of this appeal, we note the pro se brief
William Uschock submitted to this Court has substantial defects. See
Pa.R.A.P. 2111. It does not contain a statement of jurisdiction or a statement
of questions presented. See William Uschock’s Brief at 1-2. More importantly,
it fails to cite to authority entirely, and does not contain any meaningful
discussion of the issue raised. See id. It consists of two handwritten pages,
and baldly states that the Orphans’ Court acted “without an iota of evidence
to show cause,” without indicating where the evidence is lacking in the
reasoning.8 Id. at 2.
We are guided by the following: “When issues are not properly raised
and developed in briefs, when the briefs are wholly inadequate to present
specific issues for review[,] a Court will not consider the merits thereof.”
Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa. Super. 1993).
Moreover,
[w]hile this court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because []he lacks legal training. As our ____________________________________________
7The Orphans’ Court did not order William Uschock to file a concise statement of errors complained of on appeal under Pa.R.A.P. 1925(b), but did issue an opinion under Pa.R.A.P. 1925(a) on February 6, 2018.
8 Likewise, William Uschock’s reply brief merely recites facts that contravene those adopted by the Orphans’ Court, and does not cite to authority or develop any analysis. See William Uschock’s Reply Brief at 1-3.
-5- J-S25044-18
supreme court has explained, “any layperson choosing to represent [himself] in a legal proceeding must, to some reasonable extent, assume the risk that [his] lack of expertise and legal training will prove [his] undoing.”
Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996) (citation
omitted). Nevertheless, because we are able to discern the nature of the claim
raised as a challenge to his removal as executor, we will address William
Uschock’s appeal.
Our standard of review for 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 and
quotations omitted).
Section 3182 of the Probate, Estates, and Fiduciaries Code governs the
removal of executors and provides, in relevant part:
The court shall have exclusive power to remove a personal representative when he:
(1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or
-6- J-S25044-18
...
(5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.
20 Pa.C.S. § 3182. With respect to Section 3182, the Pennsylvania Supreme
Court has stated:
While, under that statutory provision, orphans' courts do have the power of removal of personal representatives and such removal lies largely within the discretion of such courts, an abuse of such discretion renders its exercise subject to appellate review. . . . Our present inquiry is whether the court below abused its discretion . ...
In our review we are mindful of well settled principles in this area. An executor, of course, is chosen by the testator himself, and his appointment represents an expression of trust and confidence by the testator. Hence, his removal is a drastic action which should be undertaken only when the estate within the control of such personal representative is endangered. To justify the removal of a testamentary personal representative the proof of the cause for such removal must be clear.
In re Estate of Lux, 389 A.2d 1053, 1059 (Pa. 1978) (citations omitted).
“The personal interest of a fiduciary being in conflict with that of the estate
and the unfriendly feeling between the heirs constitute sufficient cause for
removal.” Id. at 1060, quoting Rafferty Estate, 105 A.2d 147, 148 (Pa.
1954). “Where a conflict of interest or self-dealing is apparent from the
circumstances, there is no need to demonstrate that the fiduciary acted in bad
faith or with fraudulent intent.” In re Estate of Dobson, 417 A.2d 138, n.6
(Pa. 1980).
Turning to the present matter, in removing William Uschock, the
Orphans’ court found the following:
-7- J-S25044-18
Based upon the relevant testimony, the Court was able to establish that the estate has been open for over nine years [ ], and in that time no movement has been made towards finalizing and closing the estate. All parties credibly testified that this lack of movement was based on a refusal by William Uschock to agree to any sale of the at-issue real property, based on his own non- expert evaluation of the present and future value of said real property. It is evident that for the past nine years, William Uschock has been making use of said real property, while simultaneously refusing to move toward a resolution of the estate with his former co-executor Richard Uschock and his current co- executor David Uschock. Co-executor David Uschock made known his intention to facilitate a liquidation and closing of the estate in order to facilitate a disbursement to all five (5) heirs to the estate as soon as possible. The December 18, 2017 Order was issued to expedite the closing of the simple estate at issue, based upon the testimony of the parties and witnesses listed above.
Orphans’ Court Opinion, 2/6/2018, at 1-2. We agree with the court’s
conclusion.
The record demonstrates that William Uschock persistently refused to
sign a lease, even after his co-executor and co-beneficiaries conducted a vote
in favor of signing.9 Additionally, by insisting upon waiting to sell, William
Uschock put the Estate assets at risk several times. Due to the insolvency of
the Estate, the delay of the sale resulted in missed mortgage and real estate
tax payments. This nearly led to a tax sale multiple times, which would have
deprived all beneficiaries of their rightful share of the Estate, and forced other
parties to contribute personal funds to save the property. The record is replete
9 See Last Will and Testament, 7/22/1991, at FOURTH (stating “I direct that my co-executors get together to divide the farm in a manner they can agree to or by majority vote”).
-8- J-S25044-18
with evidence that William Uschock “[mismanaged] the estate.” See 20
Pa.C.S. § 3182(1). Accordingly, his removal is appropriate under Section
3182.
Furthermore, we are guided by Lux, supra, in which our Supreme Court
affirmed an order removing an appellant as executor because she knowingly
failed to report assets of the estate. See Lux, 389 A.2d at 1060-61. The Lux
Court found the ruling in Rafferty Estate, 105 A.2d 147, 148 (Pa. 1954), in
which an order removing an administrator was affirmed, governed because
the appellant demonstrated “clear conflicts of interest” and caused “manifest
hostility” between herself and the other heirs. Id. at 1060.
The Lux Court also noted that our Supreme Court had previously
distinguished Rafferty in DiMarco Estate, 257 A.2d 849, 854 (Pa. 1969), by
holding that a testator-chosen personal representative, rather than an
administrator, could not be removed “in the absence of a showing of injury by
reason thereof to the best interests of the estate.” Id., quoting DiMarco
Estate, 257 A.2d 849, 854 (Pa. 1969). However, despite the Lux appellant’s
status as a testator-chosen executor, the Supreme Court ordered her removal
because her failure to report assets displayed a conflict of interest and her
continuance in office would put the estate at risk of injury going forward. Id.
Similar to Lux, supra, William Uschock’s refusal to cooperate, coupled
with his personal use of the land, constituted a conflict of interest. William
Uschock caused animosity by frustrating his siblings’ efforts to sell the real
-9- J-S25044-18
estate and distribute the residue, if any. Moreover, his use of the land for his
personal farming operation is clearly at odds with the interest of the other
residuary beneficiaries in selling the real estate and settling the Estate as soon
as possible. Because of the nine years since the Estate has been opened and
exposed to risk, paired with William Uschock’s refusal to cooperate and his
personal interest in using the land, there is sufficient evidence to indicate the
interests of the Estate are “likely to be jeopardized by his continuance in
office.” 20 Pa.C.S. § 3182(5).
We further note William Uschock was chosen by the testatrix as
executor, as in Lux, supra, and his removal is therefore a “drastic action”
taken only because the Estate would be otherwise endangered. Lux, supra,
389 A.2d at 1059. However, it is less drastic since David Uschock, who was
similarly chosen by the testatrix, remains as executor.10 See N.T.,
12/14/2017, at 90. Consequently, we conclude the Orphans’ Court did not
abuse its discretion in removing William Uschock as executor.
William Uschock’s handwritten application for relief, filed May 14, 2018,
is denied as it is duplicative of the issues raised on appeal.
Order affirmed. Application for relief denied.
10David Uschock’s counsel assured the Orphans’ Court he would work to close the Estate and to facilitate the disbursement of the assets as soon as possible. See N.T., 12/14/2017, at 90.
- 10 - J-S25044-18
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/24/2018
- 11 -