HomeMy WebLinkAbout96-02817
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, 'NO. ~. ~J' Civil Term
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Court of Common PillS
Cumb, Co.
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IN '1'11'" MNI"I'F.l\ tW '1'lIt:
t~S'l'A'1'I~ Ot' JOliN W. t'lmv,
IN '1'11I': COUIt'1' OF COMMON PLEAS OF
l:UMUlmt.ANU COUN'l'Y, PENNSYLVANIA
NO. 21-91-036 ORPIIANS' COURT
llt.Jlli.I~'l',.ITIQtl ~Q..,lillMQ.'lJ~ <:0- EXECUTORS
llM.QJlli BlIIlI::I,Y...LJ!.d...
.( \J
AND NOW, lhl.u ___J
dlt'ectod that I
1. Mh:lulUl. "'lt1Y IlIld \)11111011
uxocutot'u of tho oulntu 01 Johll t'l'oy.
Qll.llli.U
day of MAY, 1996, it is ordered and
t'rey be removed as co-
2. Miohllol 1"lOY IIlId ltiuhill'L1 t'rey shall pay a
Burchnnjo, withlll IIlxly (CIO) dllYII of t.he date of this order, of
$30,500 1.0 lhl! UlIl.lIl.u b/luu<J 011 thuh' purchase of 216-218 Fourth
Street, Weill t'lIh'viow, CUmbo1'lalld County.
3. Any 'lUll 11. !lillI, i nluruated party may petition the
of WiJl1I for 10Lleru of IIdmilliotrlltion in order to
Lho I\dmLniuLI:nLLolI of Lhill eotate.
lIelJintor
complole
4. When luU.OI:1I an) CjL'l\ntod, all documents relating to
the oululu uhall be lUl'IlOd over lo the lIew administrator.
5. MUllOY advlllluOlI to lho bOlloficiaries by the estate
IH/illlllll !.Iud L" IIIII.II.UII IOlllY ho deductud from tho ultimate share of
I.hollo bUlloUe i IldUII II L lhu limo of final distribution.
Ii. 110 fUlldu IIhllll he diBtduutod from this estate to
'lilY l"'nufld,HI,y nnti I J Irlnl dl.ol.L'il>ulion io approved by this
'.'0111'1.. In Ihlll yoln, t hn IIr.1minLlILL'IlLor of the estate, when it is
conc 111110<1, nhllll II II I>m i I. II proponod finlll dintrlbution to this
<:lJUrL fot'" IlJlJlLOVIII.
1"L'/InUUlI II. Ill} I \)uc", l':rllluiro
For lho l'oli llonoL'1I
ny)t.li Court, ~
JJ~(LI/Fjt"~~
lIal:01d E. rSheely~ P.J.
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I.'or t.ho ~;Ut.I1I..,
tit.l\phtln IIl11)'J, (':UqUiL"O
Court-Appointed Auditor
IN TilE MA'1"rER OF '1'IIE
ESTATE OF JOliN W. FREY,
DECEASED
IN TilE COUHT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
I NO. 2l-9l-036 ORPIDrnS, COURT
I
I ORPHANS' COURT DIVISION
IN REI PEfITION TO REMOVE CO-EXECUTORS
BEFORE SHEELY. P.J.
QfINION AND ORDER OF COURT
Before the court is the petition of Ruth Fry and Joseph Fry
(petitioners) secking removal of narlien M. Frey and Michael J.
Frey as co-executors of the above-captioned estate. We held a
hearing on the matter on December 4, 1995. Briefs were then
filed and argument was held on April 3, 1996,
A brief factual and procedural history of this matter is AS
follows. John Frey died testate on November 25, 1991. At the
time of his death, John Frey owned several properties in the
borough of West Fairview, Cunwerland County. One of the
properties was sold, and another set aside to house Darlien Frey,
the surviving spouse. The other property, located at 2l6-2l8
Fourth Street (hereinafter referred to as "216-218"" has been
the subject of significant contention. After much maneuvering
that is neither relevant nor of record, Michael Frey, John Frey's
son and co-executor, arranged the sale of 216-218 to himself and
his brother, Richard Frey, '1'his sale took place without the
court approval required by the Probate, Estates and Fiduciaries
Code at section 3356. 20 Pa.C.S.A. S3356. Furthermore, the
transfer of 216-218 was made without the benefit of an appral.sal
to determine the current value of the property, which undoubtedly
would have been ordered by this court.
NO. 21-91-836 ORPIIANS' COUR'l' DIVISION
III any evollt, all aucount was filed, as were objections
thereto, ami thia court uppointed all auditor, stephen Hogg, Esq"
who filed hiD roport 011 June l6, 1994. This court then denied
the excoptiollD that were filed to the auditor's report in an
opinioll llnd ordor dated April 5, 1995.
011 July 16, 1995, a citation was issued upon the co-
oxm:utoru to IIhow cauae why they had 1I0t complied with the
aud i toc"" ropol.t alld why they should not be removed as executors.
Au utuloml IlllUVO, wo hold a hearing on those issues on December 4,
199!i. 'I'ho 101.:0nl of that hoaring indicateD the following. Co-
UXOLllllol' Mic:hnol Frey testified that he had not followed the
direct lOllll of the auditor's report, evon though the report had
boell con! irllled by this court. Michael Frey also stated that he
dld 1I0t opon an estate checking account, that he and his co-
executur paid eatato expenDes out of their own funds and expected
to hu c'oimbul'llCd, and that he had no idea what to do ill order to
l:tlmplelo administration of tho eDtate. Finally, Mi.chael Frey
acknowledged that ho had arranged tho sale of 216-216 without
LlOllel approval ue a current appraiual.
Co-executor Darlien Frey, the surviving spouse, also
lellt.Hied at the December 4, 1995, hearing. She stated that she
did not oxecule any doculllents for the sale of 216-216, and that
IIhe had nothing to do with any rental of that property. She also
etated that she did not know if an ostate checking account had
been opened.
2
NO, 21-91-836 ORPI~S' COURT DIVISION
estate in a timoly and propor fashion. While wo recognize the
possibility that the co-executors may have been the victims of
poor legal advice, the fact remains that the responsibility for
sstate administration lies with the executor, and no one olso,
'l'herefore, we find abundant cause to remove Michael and Darlien
Frey as co-executors of the estate of John Frey.
Next, we must address the issue of a surcharge. In his
report, the auditor ordered that any difference between the
amount pnid for 216-218 ($44,500) and the appraised value would
be a surcharge to be paid back to the estate by the personal
representative. 'l'his court confirmed that order of tho auditor
in our opinion and order of April 5, 1995. Unfortunately,
although not surprisingly, there are competing appraisals at
issue hero. One appraisal, completed on April 27, 1993, set the
value of 216-216 at $75,000. The co-executors claim that they
were unaware of that appraisal at the time that the sale of 2l6-
210 was effected (June, 1993). A second appraisal, in response
to the petition to remove the co-executors, set the value of the
property at $90,000 au of Novcuwor 9, 1995.
Petitioners now seek a surcharge in the amount of the
differonce between the sale price of the house and its appraised
value, us ordered by the auditor. It falls upon us to determine
which appraiso.l to choose. DecaUBC the sale of the property took
place in June, 1993, we will Ulle the $75,000 appraisal for the
purposes of the surcharge. 'fherefore, we will order the personal
4
NO, 21-91-836 ORPHANS' COURT DIVISION
representative to pay $30,500 ($75,000 - $45,000) into the estate
as a surcharge on 216-218.
Petitionera also seek to add other amounts to the surcharge,
including attorncy fees. At this time, in view of our removal of
the co-executors, we will not levy a further surcharge. We will
however, once again order that the auditor's report, confirmed in
our opinion of April 5, 1995, be complied with, in full, by all
parties.
Finally, the auditor's report herein ordered some
benefiqiaries of John f'rey's will to t'etllrn to the estate certain
sums of money advanced to them against thcir shares. 'rhese
beneficiaries, through the co-executoro, suggest that the amounts
they have been ordered to return be deducted from their share of
the ultimate distribution of the estate. In view of the length
and complications of the administration of this estate, we will
agree to such a system. However, we will require that the final
distribution of the on Late be approved by this court before any
payment is made. t'urthermoro, tho $30,500 aut'charge must be paid
back i.ntu tho oHlato nuLl caullot. bo dodll(:l(~d (rom tho share of any
beneficiary.
Dased on the foregoing, we ahall enter the following order.
5
IN THE MATTER OF THE
: :
IN THE COURT OF COMMON PLEAS OF
CVMBERLAND COUNTY, PENNSYLVANIA
NO. 96-2817 CIVIL TERM
. .
. .
ESTATE OF JOHN W. FREY
. .
. .
PRAECIPE
TO THE PROTHONOTARY:
Please satisfy the judgment entered May 31, 1996
against Michael Frey and Richard Frey in the amount of
$30,500.
Please enter judgment against Michael Frey and Darlien
Frey in the amount of $30,500.
A certified copy of the amended order of Court dated
June 3, 1996 is attached.
I
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Frances H. Del Duca
10 West High St.
Carlisle, PA 17013
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116269
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IN THE MATTER OF TilE
ESTATE OF JOHN W. FREY,
Deceased
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 21-9l-836 ORPHANS' COURT
ORPHANS' COURT DIVISION
IN REI AMENDMENTS TO OPINION AND ORDER OF MAY 2. 1996
BEFORE SHEELY. P.J.
MEMORANDUM OPINION AND ORDER OF COURT
On May 2, 1996, we issued an opinion and order in the matter
of a petition to remove the co-executors in the above-captioned
estate. Thereafter, it came to the court's attention that the
opinion contained some errors and ambiguities. On May 21, 1996,
judgment was entered based on our order of May 2, 1996. On May
28, 1996, Richard Frey filed a motion to open and/or strike that
judgment, Subsequently, Co-executor Darlien M. Frey filed an
appeal of the order of May 2, 1996, We iSBue a memorandum
opinion and order at this time in order to correct the errors and
ambiguities in the order of May 2, 1996.
First, there is a mistake in the text of the opinion and an
item in the order, Item.2 of the order statesl
2. Michael Frey and Richard Frey shall pay a
surch~rge, within sixty (60) days of the date
of this order, of $30,500 based on their
purchase of 2l6-2l8 Fourth Street, West
Fairview, Cumberland County.
In the body of the opinion it states I "[Wle will order the
personal representative to pay $30,500 ($75,000 - $45,000) into
the estate as a surcharge on 216-218." Notwithstanding our math
error, the two directives conflict. It is the intention of the
court that the surcharge be paid by Michael Frey and Darlien
Frey, the co-executors who engaged in the self-dealing and caused
NO. 21-91-836 ORPHANS' COURT DIVISION
the estate to sell 216-218 for much less than its appraised
value. Therefore, we will amend the opinion accordingly.
Next, language in the opinion states, "We will however, once
again order that the auditor's report, confirmed in our opinion
of April 5, 1995, be complied with in full, by all parties." It
is the court's intention that the auditor's report be complied
with to the extent that it does not conflict with our May 2,
1996, order, Where there is conflict, the May 2, 1996, order
shall control,
AND NOW, this cl
ORDER
day of June, 1996, the opinion and order
entered May 2, 1996, in the above-captioned action is amended as
follows I
1. At the sentence beginning on the bottom of page four and
moving on to the top of page five of the opinion, the term "the
personal representative" shall be replaced with "Michael Frey and
Darlien Frey, the co-executors" and "($75,000 - $45,000)" shall
be replaced with "($75,000 - $44,500)",
2. At the end of the first full paragraph on page five of
the opinion, the following sentence shall be added I " To the
extent that compliance with the auditor's report conflicts with
today's order, today's order ehall control."
3. ~I item '7 ehall be added to the order as follows I
7. The auditor's report herein, confirmed in
our opinion and order of April 5, 1995, shall
be complied with in full br all parties, To
the extent that such compl ance conflicts
with this order, this order shall control.
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NO. 21-91-836 ORPHANS' COURT DIVISION
4, The judgment entered May 21, 1996, shall be marked
satisfied, and a new judgment entered in accordance with this
order,
By the Court,
Jf~I-:~~
Harold E, Shee y, P,J.
, Kevin S, Blanton, Esquire
~rana.. B. Del Duoa, Esquire
thleen D, Keatin9, Esquire
R ert G, Radebaoh, Esquire
William 0, Vohs, Esquire
. ' Stephen J, 8099, Esquire - Court Appointed Auditor
Idd
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ESTATE of JOHN A. FREY
In Ih~ Cuurlur Cummun Plcus ur
CumbHlund CUUnly, I'cnnsylvunla
VI.
2817
_ Civil, 199(,;
Nu.
MICHAEL FREY and DARLENE FREY
Dear Prothonotary:
Please satisfy the judgme~~ aga~nst _~ic~ael Frey and Dar~ene
Frey.
._--.--t--.~.-..-__._._o--___.._.___..._~,_o-__
.~- -.--.----.- -.-________._~_h__._
To
Curt Long
Prolhullu~IrY
November
2001
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F r a nee s H. De l\ll&uqC{ur Plaintiff
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