In re Estate of Cherwinski

• Decision Date: 04 August 2004
• Docket Number: No. 404 MDA 2003.,404 MDA 2003.
• Citation: 856 A.2d 165,2004 PA Super 305
• Parties: IN RE: ESTATE OF ANNA CHERWINSKI, DECEASED. APPEAL OF: DIANE L. TRIGILIA.
• Court: Pennsylvania Superior Court

2004 PA Super 305

856 A.2d 165

IN RE: ESTATE OF ANNA CHERWINSKI, DECEASED.

APPEAL OF: DIANE L. TRIGILIA.

No. .

Superior Court of Pennsylvania.

Filed: August 4, 2004.

Before: DEL SOLE, P.J., JOYCE and KLEIN, JJ.

OPINION BY 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 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, 12 A.2d 103, 105 (Pa. 1940); see also In re Estate of Donsavage, 218 A.2d 112, 116 (Pa. 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, 675 A.2d 306 (Pa. Super. 1996); In re Shahan, 631 A.2d 1298 (Pa. Super. 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.

DISSENTING OPINION BY JOYCE, J.

¶ 1 Upon my review, I cannot agree with the distinguished Majority's conclusion that an order imposing a surcharge constitutes a final and appealable order when entered prior to the confirmation of the final accounting and schedule of distribution. Accordingly, I dissent.

¶ 2 In this Commonwealth, an appeal may only be taken from: "1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right, 3) an interlocutory order by permission; or 4) a collateral order." Morgan Trailer Mfg., Co. v. Hydraroll, Ltd., 804 A.2d 26, 29 (Pa. Super. 2002). An order is not final unless it disposes of all claims and of all parties, is specifically defined as final by statute or is expressly determined to be final by the trial court. See Pa.R.A.P. 341; In re Estate of Quinn, 805 A.2d 541 (Pa. Super. 2002); In re Estate of Borkowski, 794 A.2d 388, 389 (Pa. Super. 2002); In re Estate of Sorber, 803 A.2d 767, 768 (Pa. Super. 2002). In a decedent's estate, the confirmation of the final account of a personal representative represents the final order, subject to exceptions being filed and disposed of by the court." Borkowski, 794 A.2d at 389 (citing 20 Pa.C.S. § 3514).

¶ 3 In the instant case, the record reveals that Appellant, during her tenure as the estate's personal representative, filed a formal account and schedule of distribution. Additionally, two of Appellant's brothers filed exceptions to this accounting, and the trial court held a hearing on the exceptions. The record further reveals that, three years after this hearing, the trial court entered an order surcharging Appellant the sum of $25,544.74 and directing Appellant to turn over certain property and the estate file as a result of her mismanagement of the estate. Nevertheless, the record does not reveal that the trial court ever entered an order confirming the final account and approving the proposed distribution.

¶ 4 As the record indicates that the estate remains under administration, I cannot conclude that the trial court's entry of an order imposing a surcharge disposes of all claims and of all parties. See Pa.R.A.P. 341(b)(1). Neither have I found a statute which renders the instant order final by statutory definition. See Pa.R.A.P. 341(b)(2). Additionally, the trial court has not made an express determination that an immediate appeal would facilitate a resolution of the entire case. See Pa.R.A.P. 341(b)(3). Therefore, I cannot conclude that the instant order qualifies as a final and appealable order.

¶5 The Majority, however, relies on two Supreme Court cases for the proposition...