In re Estate of Moskowitz

• Decision Date: 08 May 2015
• Docket Number: No. 3302 EDA 2013,3302 EDA 2013
• Citation: 115 A.3d 372,2015 PA Super 112
• Parties: In re ESTATE OF Leonard J. MOSKOWITZ, Deceased. Appeal of Michael B. Fein and Bernice Fein.
• Court: Pennsylvania Superior Court

115 A.3d 372

2015 PA Super 112

In re ESTATE OF Leonard J. MOSKOWITZ, Deceased.

Appeal of Michael B. Fein and Bernice Fein.

No. 3302 EDA 2013

Superior Court of Pennsylvania.

Argued October 7, 2014.

Filed May 8, 2015.

Reargument Denied June 30, 2015.

Joseph B. Van Wyk, Media, for appellants.

Stephen Carroll, Media, for appellee.

BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

Opinion

OPINION BY GANTMAN, P.J.:

Appellants, Michael B. Fein and Bernice Fein, appeal from the decree entered in the Delaware County Court of Common Pleas, which granted partial summary judgment in favor of Appellee, Estate of Leonard J. Moskowitz, Deceased (“Estate”), and ordered Appellants to transfer certain assets to the Estate. Appellants also challenge the court's decree, which denied Appellant Ms. Fein's motion for discovery. We affirm in part and quash in part.

The relevant facts and procedural history of this case are as follows. Bernice Fein was the longtime companion of Leonard Moskowitz (“Decedent”). Appellant Michael B. Fein is Appellant Ms. Fein's son. On February 4, 2000, Decedent executed a New Jersey power of attorney (“POA”), naming Appellant Mr. Fein as his agent. The POA document provided in relevant part as follows:

I. POWERS

In connection with any property or any other interest whatsoever which I may hold, my attorney shall have full power to control or dispose of my property, to execute contracts or other obligations which shall be binding upon me, and to take any action, in my name and on my behalf, which I could take in my own name and on my own behalf.

II. OTHER PROVISIONS

A. Except to the extent that I have expressly provided otherwise, the exercise of any of the powers granted to my attorney shall be in my attorney's sole discretion. The decisions of my attorney to exercise, or to refrain from exercising, any power, arrived at in good faith, shall be binding upon me and my heirs, executors, administrators, and assigns.

(Administrator's Motion for Partial Summary Judgment, Exhibit A, filed 7/30/12; R.R. at 35a). Decedent executed a last will and testament on January 2, 2007. In his will, Decedent (1) named Appellant Ms. Fein and Joshua Taylor as co-executors; (2) bequeathed his personal property to Appellant Ms. Fein and left the balance of the Estate in trust for Appellant Ms. Fein; (3) named Mr. Taylor and Joseph Fine¹ as trustees of the trust created for the benefit of Appellant Ms. Fein; and (4) named Joseph Fine as the beneficiary of the trust upon the death of Appellant Ms. Fein.

In early 2009, while Decedent was still alive, Appellant Michael B. Fein exercised his POA to conduct a series of transactions involving Decedent's assets. On January 16, 2009, Appellant Mr. Fein transferred various securities valued at $584,490.13, from Decedent's solely owned TD Ameritrade account (“TD Account 1”) to a TD Ameritrade account jointly owned by Decedent and Appellant Ms. Fein (“TD Account 2”). Appellant Mr. Fein also transferred securities valued at approximately $47,769.88, from Decedent's Citibank Smith Barney account to Decedent's TD Account 1 on February 19, 2009. That same day, Appellant Mr. Fein transferred these same securities from TD Account 1 to TD Account 2. On March 3, 2009, Appellant Ms. Fein transferred these securities in TD Account 2, then valued at approximately $533,164.41,² to a different TD Ameritrade account owned jointly only by Appellants Ms. Fein and Mr. Fein (“TD Account 3”). Appellant Mr. Fein also conveyed a property located on S. 5th Street in Philadelphia (“Philadelphia property”) from Decedent, to Appellant Ms. Fein and Decedent as tenants by the entireties, by deed dated February 6, 2009. Decedent died on March 18, 2009.

On April 28, 2009, Mr. Taylor filed a petition seeking appointment as sole executor of the Estate. In the petition, Mr. Taylor alleged that Appellant Mr. Fein had exercised his POA unlawfully to retitle certain of Decedent's solely owned assets as jointly owned by Decedent and Appellant Ms. Fein. In new matter in her answer to the petition, Appellant Ms. Fein claimed Decedent's will should be admitted to probate in New Jersey, thereby raising a question of Decedent's domicile upon death. On July 24, 2009, the Delaware County Register of Wills issued an order declaring Decedent was domiciled in New Jersey at time of death.

Mr. Taylor appealed the decision to the Delaware County Orphans' court. The Orphans' court reversed the order on April 4, 2011, and directed the Register of Wills to receive and act upon a petition to probate Decedent's will. The Register of Wills subsequently certified to the Orphans' court Mr. Taylor's petition seeking appointment as sole executor of the Estate. In November 2011, Mr. Taylor and Appellant Ms. Fein both renounced their rights to administer the Estate in favor of a neutral administrator. The Orphans' court appointed Stephen Carroll as administrator de bonis non cum testamento annexo³ of the Estate on November 10, 2011.

The Estate, through Mr. Carroll, filed a petition on February 15, 2012, to compel Appellant Mr. Fein to file an accounting of his actions as agent for Decedent under the POA. Appellant Mr. Fein filed an answer and objections to the petition. On April 4, 2012, the court entered a decree directing Appellant Mr. Fein to prepare a complete accounting of all actions undertaken as Decedent's agent under the POA. Appellant Mr. Fein filed an initial accounting⁴ and a petition for adjudication/statement of proposed distribution on May 17, 2012.

On July 30, 2012, the Estate filed a petition for a preliminary injunction, a motion for partial summary judgment, and a “petition for return of trust assets,” seeking imposition of a constructive trust on the assets listed in Appellant Mr. Fein's initial accounting. The court issued a preliminary injunction on August 8, 2012, which enjoined Appellants from transferring, disbursing, or otherwise dissipating the assets. Appellant Mr. Fein filed a response in opposition to the Estate's motion for partial summary judgment on September 14, 2012. On October 2, 2012, the court denied the Estate's motion for partial summary judgment without prejudice, pending resolution of Appellant's Mr. Fein's appeal to this Court from a separate declaratory judgment action. The court also ordered a new accounting of the assets referenced in the decree granting the Estate a preliminary injunction. Appellant Mr. Fein submitted a purported accounting, but the court found the accounting failed to comply with the October 2, 2012 decree and ordered a new accounting to be filed by February 8, 2013.

On March 18, 2013, the Estate filed objections to the initial accounting of Appellant Mr. Fein and petition for adjudication. The following day, Appellant Mr. Fein submitted a purported new accounting. The court subsequently issued a decree finding Appellant Mr. Fein had willfully disobeyed the court's multiple decrees directing the filing of a full accounting. Appellant Mr. Fein filed another accounting on May 31, 2013. This accounting clarified that the securities referenced in the initial accounting had been ultimately transferred into joint ownership of Appellants prior to Decedent's death.

On July 26, 2013, Appellant Ms. Fein filed a “Petition to Show Cause Why Letters Of Administration Issued to Stephen Carroll, Esquire Should Not Be Revoked.” Appellant Ms. Fein filed a motion for leave to obtain discovery in aid of the petition on October 1, 2013.

By separate decrees dated October 29, 2013, and filed on October 31, 2013, the Orphans' court granted the Estate partial summary judgment and directed Appellants to return to the Estate all assets Appellant Mr. Fein had transferred from Decedent under the POA, as identified in the accountings. The court also denied Appellant Ms. Fein's motion for leave to obtain discovery in aid of her petition to revoke letters of administration issued to Stephen Carroll, Esquire. Appellants filed a timely notice of appeal on Monday, December 2, 2013.⁵ The court ordered Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) ; Appellants timely complied. This panel initially reviewed the matter and affirmed on February 4, 2015. Appellants timely filed a petition for reconsideration/reargument on February 18, 2015. We granted panel reconsideration on March 27, 2015.

Appellants raise the following issues for our review, which we have reordered for ease of disposition:

WAS ADMINISTRATOR'S ACTION FOR SPECIFIC RECOVERY OF PROPERTY CLAIMING THAT [APPELLANT MR. FEIN'S] ACTS WERE GIFTS NOT AUTHORIZED BY THE POWER CONFERRED ON HIM BARRED BY 42 PA.C.S.A. § 5524 ?

IS THE STATUTE OF LIMITATIONS RUNNING AGAINST AN ESTATE'S ACTION TO RECOVER PROPERTY FOUNDED ON ALLEGED TORTIOUS CONDUCT TOLLED UNTIL A PERSONAL REPRESENTATIVE OBTAINS LETTERS OF ADMINISTRATION?

DID [APPELLANT MR. FEIN] MAKE AN INTER VIVOS GIFT TO [APPELLANT MS. FEIN] UNDER HIS POWER OF ATTORNEY?

IS A DECISION BY AN AGENT TO MAKE A GIFT OF HIS PRINCIPAL'S PROPERTY UNDER HIS POWER OF ATTORNEY INCONSISTENT WITH THE LAWS OF THIS COMMONWEALTH?

SHALL A POWER OF ATTORNEY EXECUTED IN NEW JERSEY IN CONFORMITY WITH THE LAWS OF NEW JERSEY WITH RESPECT TO AUTHORITY OF [APPELLANT MR. FEIN] TO MAKE A GIFT BE CONSIDERED VALID IN THIS COMMONWEALTH WITH RESPECT TO THAT AUTHORITY?

WAS THE INTERLOCUTORY DECREE DENYING [APPELLANT MS. FEIN'S] MOTION FOR AUTHORIZATION TO TAKE DISCOVERY IN AID

OF PETITION TO SHOW CAUSE AN ABUSE OF DISCRETION?

(Appellants' Brief at 5–6).

In their first two issues combined, Appellants argue the Estate's action for recovery of “retitled” assets is governed by the two-year statute of limitations under 42 Pa.C.S.A. § 5524. Appellants contend this Court quashed Mr. Fein's previous appeal solely due to the absence of an actual controversy between the parties, without addressing the statute of limitations issue. Appellants assert the Estate commenced the action to recover Decedent's former property on July 30, 2012,...