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HomeMy WebLinkAbout05-23-12r IN RE: ESTATE OF :THE COURT OF COMMON PLEAS OF LOTTIE IVY DIXON, :CUMBERLAND COUNTY, PENNSYLVANIA Deceased :ORPHANS' COURT DIVISION N0.21-07-0686 IN RE: ESTATE OF :THE COURT OF COMMON PLEAS OF GEORGE F. DIXON, JR., :CUMBERLAND COUNTY, PENNSYLVANIA Deceased :ORPHANS' COURT DIVISION QTIP -Trust : NO. 21-1994-0754 AUDITOR' S REPORT AND RECOMMENDATIONS STATEMENT OF QUESTIONS INVOLVED 1. Was the conduct of the Brothers in the litigation sufficiently dilatory, obdurate, or vexatious to entitle the Estate to an award of attorney fees? Answer: Yes 2. Does the Orphans' Court division have the authority to award attorney fees for legal work in opposition to an appeal that was either dilatory, obdurate, or vexatious or that was frivolous for any other reason? Answer: No 3. Do the facts of this case support holding counsel for the Brothers jointly and severally liable for an award of attorney fees for dilatory, obdurate, or vexatious misconduct in this litigation? Answer: No n ~ c _ r~ ' i ~ ~, ~ ~ ~~~, ' r, c~, ~~.- ~ ,. _.,- _:.. __ a 4. Is the Brothers' request for dismissal of the Executor's motion for attorney fees waived? Answer: Yes STATEMENT OF THE CASE AND NOW, this 23rd day of May, 2012, after hearing, the auditor finds and recommends, as follows: George F. Dixon, Jr. died, testate, on August 28, 1993. Lottie Ivy Dixon (hereinafter "Lottie"), the surviving spouse of George F. Dixon, Jr., died on June 28, 2007. George F. Dixon, Jr. and Lottie were the parents of Richard E. Dixon and George F. Dixon, III (hereinafter "the Brothers") as well as Marshall L. Dixon (hereinafter "Marshall" or the "Executor"). The only other sibling of the Executor and the Brothers is their sister, Charlotte Dixon, who has not involved herself in the disputes among the parties hereto. Under the Will of George F. Dixon, Jr., part of his estate was given to his QTIP Trust. The Co-Trustees of the QTIP Trust are the Brothers and Manufacturers and Traders Trust Company (hereinafter "the Bank"). Marshall is the Executor of the Estate of Lottie (hereinafter "the Estate"). The total assets in the QTIP Trust and the Estate were in excess of $12,000,000 and the total net assets for distribution after taxes and other expenses of administration were m excess of $6,000,000. -2- On July 25, 2008, the Executor filed the First Intermediate Accountin Pe ' ' 'r g, tition for Adjudication, and Statement of Proposed Distribution (the Estate Acc ounting"). On August 22, 2008, the Brothers filed several objections to the Estate Accounting. After hearing on the merits of the claims of the Brothers on Februa 24 2 rY 010, the auditor recommended that the objections of the Brothers to the Estate Accou ' ntmg be dismissed on the bases, inter alia, that Lottie had engaged, for the last fou r years of her life, in an ongoing pattern of gifts to Marshall from the joint checkin acc g ount and of consenting to Marshall's unrestricted access to the joint checking account. Wher e the Brothers had conceded, with the benefit of counsel, that they could not rov p e that Lottie was subject to incapacity or undue influence during her lifetime, the auditor fou nd the evidence to be clear and convincing that Marshall did not defraud Lottie b y using Lottie's funds for his own benefit through theft, deception, fraud, and misre resen ' p tahon, without the knowledge or permission of Lottie. With the exception of certain, undisputed adjustments that were relative) y minor in the context of the value of the Estate, the auditor recommended that the Estate Accounting be confirmed in all other respects. Both the Estate and the Brothers filed objections to the Report and Recommendations of the auditor which are before your Honorable Court f or disposition. By agreement of the parties, all issues regarding liability for attorne fees i Y ncurred by the parties in addressing their various objections were deferred and re p served for later disposition. (Tr. 2/24/10, pp. 28.29) -3- On October 19, 2011, Marshall, in his ca motion to re pacity as Executor of the Estate, filed a quire the Brothers to pay the attorney fees addressing the objections asserted b th that the Estate incurred in Y e Brothers to the Estate Accountin motion, the Estate requested that the Brothe g. In its severally liable for the fees clai rs and their counsel be held jointl med b Y and y the Estate. On October 1, 2011, the Bank filed a sta addressing the objections asserted Cement of attorney fees incurred in to the Estate Accounting, but the Bank did evidence at the hearing on the issue of att not offer orney fees. BY Order of November 15, 2011, your counsel fees to the auditor. O Honorable Court referred the claims of n December 7, 2011, the Brothers filed the' motion to strike and dismiss the claims oft it answer and he Estate for attorney fees incurred in addressing the objections asserted by the Brothers to the Estate Accounting. On December 21, 2011, the Estate filed i strike and dismiss the claims of th is response to the answer and motion to e Estate for attorney fees incurred in addre ' objections asserted by the Brothers to the ssmg the Estate Accounting. On December 22, 2011, your Honorable C objections to the re °Urt deferred disposition of the port and recommendations of the auditor with r of the Brothers to the Estate Accountin eSpect to the ob' sections g until after receipt of the report and recommendations of the auditor with res pect to the claims of the Estate for attorne fe incurred in addressing the objections as serted b Y es y the Brothers to the Estate Accountin . g -4- On February 23, 2012, a hearing was held on the issue of the claims of the Estate for attorney fees incurred in addressing the ob' sections asserted by the Brothers to the Estate Accounting. The Estate's claims for attorney fees are now presented for disposition. FINDINGS OF FACT I • The Brothers were represented by the Mart 2007 throw son Law Offices from September gh early December 2009. Tr, 2/23/12, p, g. 2. From January 2010, through the presen t, the Brothers have been represented by Obermayer Rebmann Maxwell & Hippel LLP (the "Obermayer Firm"). Tr. 2/23/12, p, g• 3• In September of 2007, within three months expressed surprise at the „ o after Louie's death, the Brothers "paucity f assets in the Estate, and the returns and financial account statements from the y requested Louie's tax Executor's Exhibit lA. Executor. Tr. 2/23/12 p 21, 4• By September 26, 2007, the Executor had 1700 pages of documents which includ provided to the Brothers more than ed all of the tax returns and account statements that were in Louie's home. Tr. 2/23/12 p 21 Executor's Exhibits 1B and 1C. 5• The Executor also offered, on September 21 would allow the Brothers to obtain an ' 2007, to sign authorizations that y other documents directly from third parties. Tr. 2/23/12/P• 22; Executor's Exhibit 1B. 6. It was not until eight months later, in Ma y of 2008, that the Brothers provided draft authorizations for the Executor to si n s g o that the Brothers could obtain account -S- statements and cancelled checks directly fro . m the financial institutions with w had accounts during the last years of her li hom Lottie fe. Tr. 2/23/12, p 22; Executor's Exhibit ~• After some minor revisions to the draft 2A. Brothers, the Executor authorizations provided by the provided the signed authorizations to the Broth June 5, 2008. Tr. 223/12 ers by letter dated ' pp. 23-25; Executor's Exhibits 2B and 2C. 8' On August 22, 2008 the Brothers filed several objections to the Estate Accounting, including, inter alias (a) an objection that the value of the understated"; personal property and jewelry was "grossly (b) an objection to the allocation of the Un' ifled Tax Credit; (c) an objection to the Estate's retention of (d) an objection that the attorne a p°rtion of a federal tax refund; Ys' fees billed to the Estate were excessive• (e) an objection that the Executor's co mmissions (~ an objection that " Were excessive; and substantial assets includable in the Estate are for." not accounted 9' On August 26, 2008, the issues in the Es hearin tate were referred to the auditor for a g and disposition. 10. The Executor made several requests tha t the auditor establish a time table for the resolution of the Brothers' Objections. Executor s Exhibits 3A, 3D, 4A~ and SC. 11. By September 26, 2008, the Brothers r monthl epresented that they had received the y account statements and cancelled checks for t had held at the Bank, and its predec he checking account that Lottie essor banks. Executor's Exhibit 3C, -6- 12. In the same letter of September 26, 2008, the complete written discover Brothers stated that they would y, and an appraisal of the real estate and personal ro the end of 2008, and they also stated that the ex p pertY, by Y pected to seek the Executor's personal banking and brokerage account information. Tr. 2/23/12, p, 30; Executor's Exhibit 3C. 13. The Brothers stated that they would com let in Janua p e the deposition of the Executor ry 2009 and would submit their pre-hearing memor 2009. Tr. 2/23/12 andum by the end of January , p. 30; Executor's Exhibit 3C. 14. When the Executor objected to the Brothers' discover suggestion that they would seek y of the Executor's personal account information, the letter dated October 10, 2008, that the ~, Brothers responded by Y ould show cause for seeking that discovery. Executor's Exhibits 3D and 3E. 15. The Brothers took no discovery from October interrogatories to the Brothers on June 10' 2008' until they issued 18, 2009. Tr. 2/23/12 pp. 32 and 36; Executor's Exhibit SC. 16. On February 11, 2009 the auditor inquired of when the counsel for the Brothers as to y would be filing their pre-hearing memorandum that the they would be filin b y had indicated that g y the end of January of 2009. Executor's Exhibit SA 17. The Brothers responded that the QTIp Accoun objections to that account were ex ect t had been filed and that p ed and that those objections should be consolidate with the objections to the Estate Accountin Ex d g ecutor s Exhibit SB. 18. On February 27, 2009, Marshall, individual) Trust, through separate counsel, and in Y as a beneficiary of the QTIp his capacity as Executor, filed objections to the -7- First and Final Account and Statement of Proposed Distr' ibution of Trustees of the QTIP Trust. 19. On February 27, 2009, the Brothers, as beneficiaries objections to the First and Final Account a of the QTIP Trust, filed nd Statement of Proposed Distribution of the Trustees of the QTIP Trust. 20• Lottie's personal property and jewelry were not be u nor were they bequeathed to the QTIP or th q Bathed to the Brothers, e Revocable Trust for which the Brothers served as co-Trustees. Tr. 2/23/12, p. 11. 21. The valuation ofpersonal property and jewelr woul the distribution of the Estate assets. Tr. y d have had no effect on 2/23/12, p. 11. 22. The Executor had obtained an independent, professio nal appraisal of the personal property and jewelry, and the Brothers never gave an b ' y asis for questioning that appraisal. Tr. 2/23/12, pp, 11-12. 23. The Brothers never obtained their own appraisal of the jewelr personal property and y, despite representing to the auditor that they intended to do 24. The Brothers never explained a le al so Tr 2/23/12, p 12 g or factual basis for their objection to the way that the Unified Tax Credit was allocated. Tr. 2/23/12 pp. 13 and 15. 25. The Unified Tax Credit was allocated as required b th Code, state law, and as set forth in Lottie's y e Internal Revenue Will, (all of which required that the tax resulting from the QTIp be paid out of the QTIP), such that t properly shared only among non- T he Unified Tax Credit was Q IP assets. Tr. 2/23/12, pp. 13.14. -8- 26. At the time of Lottie's death, the QTIp o amount of wed income to the Estate in the more than $140,000, but the Brothers, as co-trustee Pay that income to the Estate, despite the Estat ~ s of the QTIp refused to 16. e s demand therefor. Tr. 2/23/12, pp 15- 27• This deprived the Estate of liquid assets t 2/23/12 hat it needed for administration. Tr. p. 16. 28. The Estate set off the amount it was due the tax refund that was due to the from the QTIp against the amount of QTIP. Tr, 2/23/12, p. 16. 29. The Brothers never provided any factual or legal basis for their objection to the Estate's set-off. Tr. 2/23/12, pp 16.17. 30. On February 9, 2010, the Brothers filed a memorandum in which the supplemental pre-hearing y withdrew certain of their objections to the Esta Accounting. to 31. The withdrawals of objections by the Bro hearm thers were confirmed at the pre- g conference on February 12, 2010, and documente Februa d m the auditor's directive of ry 22, 2010. 32. The objection to the valuation of the erso withdrawn b P nal propel-ty and jewelry ,vas y the Brothers. Tr. 2/23/12, p 12; Executor's E xhibit 9, p. 6. 33. The objection to the allocation of the Uni fled Tax Credit was withdrawn by the Brothers. Tr. 2/23/12, p. 14; Executor's Exhibit 9, p. 1. 34. The objection to the Estate's retention of refund was withdrawn b a Portion of a federal estate tax y the Brothers. Executor's Exhibit 9, p. 2. -9- 35. On January 30, 2009, the Brothers and the B Account and Statement of Proposed Dis ank filed their First and Final tribution as Trustee of the QTjp Trust Tr. 2/23/12, p. 33; Executor's Exhibit SB. 36. On March 3, 2009, the issues involvin the g QTIP Trust were referred to the auditor for a hearing and disposition. 37. On April 14, 2009, the Executor filed a moti the QTIp Account objections and the Est °n asking the Court to consolidate ate Account Objections and set a discovery deadline for both matters. Tr. 2/23/12 p• 34. 38. On June 17, 2009, the objections to the Esta to the First and Final Account and Stat to Accounting and the objections ement of Proposed Distribution of the Trustees of the QTIp Trust were consolidated in accordance with the agreement of the parties. 39. The Executor requested a discovery deadline Brothers requested a discover of July 31, 2009, and the y deadline of August 31, 2009. Tr. 2/23/12 p 35. 40. On June 17, 2009, the auditor's directive for order of court. scheduling was endorsed as an 41. The order of June 17, 2009, required the com 31, 2009. pletion of discovery by August 42. On June 18, 2009, the Brothers served interro gatories upon Marshall as Executor of the Estate. 43. The Executor fully and timely responded to the interrogatories of the Brothers. -10- 44. The Brothers did not assert that interro the responses of the Executor to the gatories of the Brothers were incomplete or therein that any of the objections asserted were improper. Tr. 2/23/12, p, 3 7. 45. On August 24, 2009, then counsel identi for the Bank withdrew as counsel after Eying a conflict. 46. The Brothers had not conducted t he deposition of the Executor b that previous counsel for the Bank wit hdrew Y the time as counsel on August 24, 2009. 47. The August 31, 2009, deadline for by thin the completion of discovery was exten y days by agreement of the parties as a r ded the Bank. esult of the withdrawal of then counsel fo r 48• New counsel for the Bank entered their appearance on August 27, 2009. 49. The Brothers conducted the de os' ' 2009 P rtlon of the Executor on September 23 ,seven days prior to expiration of the extend ed deadline. S0. In June of 2003, Cottle made the E checkm xecutor a joint owner, with her g account at the Bank (formed ~ of her Y Allfirst Bank). (Tr, 2/24/10, pp_ S9~ 73 S1. During his deposition, the Executo ~ the omt r testified that some of the J account were for Lottie's payments from expenses, some sere gifts to him, and some reimbursement for items that he had were in purchased for Lottie. 52. In his deposition, the Executor wa given check was a s unable to specify the extent to gift or a reimbursement or a combinati ~'~'hich any 53. On October 9 °n of both. 2009, the Brothers filed a motion to e deadline beyond the agreed Se xtend the discovery ptember 30, 2009, to enable them to furth er investigate the -ll- Executor's finances on the basis of their assertio n that the Executor's answers in his deposition were incomplete. Tr. 2/23/12 P• 39. 54. The Executor opposed the Brothers' Motion had had more than two years to obtain i °n the grounds that the Brothers nformation to support their allegation that assets were not accounted for, that the Brothers had had co pies of the checks written from Lottie's checking account for more than a ear Y ,and that they did not investigate those checks before the discovery deadline. Tr. 2/23/1 2, p. 39. 55. The auditor held a discovery conference on Brothers' November 11, 2009, at which the motion to extend discovery and other discove 2/23/12 ry issues were discussed. Tr. pp. 40-41; Executor's Exhibit 7. 56. By the date of the discovery conference on had never advanced an November 11, 2009, the Brothers y allegations that there was anything improper abo distributions from the ' ut any jointly-owned checking account for the benefit of 57. In his report of November 20 the Executor. 2009, on the discovery issues, the auditor rejected the request for extension of the discove ry deadline for the reasons that the Executor could be asked at the hearing, as to each disbursement from the checking account that he owned jointly with Lottie, whether it re expense of his mother or a reimbursement presented a gift to him or an of an expense that he paid for his mother or some combination thereof. 58. In the repot of November 20, 2009, on the concluded that, if the Executor wo discovery issues, the auditor uld be unable to specify whether a disbursement represented a gift to him, the brothers would be entitle d to an adverse inference that it -12_ was a gift to him where he was a joint o caner of the checking account fro payments were made. m which the 59. Such an adverse inference wou ld have been favorable to the Broth contention that the Estate had impro erl ers' p Y allocated the federal estate tax uni 60. In their discovery motion and fed credit. contended that Lottie had a bro at the Discover Y Conference, the Brothers' kerage account worth approximate) not accounted for in the Estate Y $500 Accountin ,000 that was g• Tr. 2/23/12, pP• 40-41. 61. In the report of November 20 2 recommended that the 009' on the discover Executor be re Y issues, the auditor and that the quired to produce his personal broker motion to extend discover age state y be denied. menu 7• Tr• 2/23/12, p• 41; Executor's E xhibit 62. In the report of November 20 2 rese ~ 009, on the discover rued reconsideration of the re Y issues the auditor deadline at the quest of the Brothers for an extension of pre-hearing conference that the discovery event that the ~'~'as scheduled for Dece Executor would fail to tuber 9, 2009 disclose ~ in the Januar his brokerage account state Y 1, 2003, to the date of death of Lotti ments from e by the date of that pre_hearing confe 63. The Executor timely produced h' is brokera rence. Lottie had not transfe ge account state rred any $S00 0 menu showing that , 00 brokerage account to him, Tr. 2/ 64. At the discovery conference on 23/12 Nove ~ p• 41. was scheduled for Dece tuber 11, 2009 tuber 9 ' apre-hearing conference 2009, and auditor's hearings were s December 16, 17, and 18, 2009. cheduled for -13- 65. The order of June 17, 2009, also set forth a s hearing memoranda and stated that the chedule for submission ofpre- hearing would be concluded by early December 2009. Executor's Exhibit 6. 66. The auditor's directive required the Brother ' hearin s, in their October 2009 pre- g memorandum, to itemize the assets that they contend excluded from the Estate and provide the ra ' ed Were improperly tionale and legal authority for the Brothers' position. Tr. 2/23/12, p. 45~ Executor's Exhibit 6. 67. The Brothers' pre-trial memoranda submitte ' itemize the assets that the Brothers c din October 2009 failed to ontended were not included in the Estate that should have been included, and failed to provide an s y upp°rting rationale and legal authority. Tr. 2/23/12 p. 45, Executor's Exhibit 8. 68. The auditor's directive also required the Bro memorandum that identified their ro thers to submit apre-hearing p posed witnesses and exhibits for the hearing. Tr. 2/23/12, p• 46; Executor's Exhibit 6. 69. The Brothers did not submit that pre-hearin 46, g memorandum. Tr. 2/23/12, p. 70. At the pre-hearing conference on December 9 objections of the ~ 2009, hearings on the various parties were scheduled for February 24, 25, and 26 71. At the re_ ~ 2010. p hearing conference on December 9, 2009, then Brothers indicated that the counsel for the y would be filing a petition to withdraw as counsel. - ]4 - 72. On December 10, 2009, Manson Law withdraw as counsel for the Brothe Offices filed a Petition seeking to rs and requesting a general continuance of the Tr. 2/23/12, p. 46. hearing. 73. On December 14, 2009, the order of 2009 the Orphans' Court of December 11, ,was docketed. 74. The order of December 11, 2009, er ' p mrtted then counsel for the Brothers to withdraw as counsel, continued, generall y, the hearings that had been scheduled for December 16, 17, and 18, 2009, ordered t he Brothers to retain new counsel within 3 days, and scheduled apre-hearing confere 0 nce for February 12, 2010. 75. The Court's Order set February 24 25 hearm ~ ~ and 26, 2010, as the new g and February 12, 2010, as the date for the r _ dates for the on December 14 p e trial conference. See, Order (filed 2009); Tr. 2/23/12, p. 47. 76. On January 25, 2010, four attorne s Y with the Obermayer Firm entered an appearance as counsel for the Brothers. 77. On the February 12, 2010, date of the _ filed a Pre hearing conference, the Brothers petition for appointment of an administrator 20 pa pro tem, pursuant to the provisions of C.S. § 4301, to replace Marshall as the Exe cutor of the Estate on the basis of an alleged conflict of interest between Marsha 11 and Lottie. 78. The Brothers alleged in their petition tem that Lottie's for appointment of an administrator ro mental health began to deteriorate in 1999 in c p previous, counseled concession that the ontradiction of their y could not prove that Lottie was subject to incapacity or undue influence Burin her ' g lifetime. -ls- 79• The Brothers never objected to lacked testa Probate of Lottie's Will for the reason th mentary capacity or for any other reason. at she 80. After the close of discovery and memorandu after filing their October 2009 m, the Brothers changed their le Pre hearing from the Estate. gal theory to a claim that assets Tr. 2/23/12, pp• 43-44• were missing 81 • The Brothers contended that, thr $200 000 °Ugh October of 2009, approximatel were dissipated from the Estate b Y Y checks that Lottie wrote to the Execut to pay the Executor's credit card bills and that a or or missing. Tr 2/23/12 $500,000 brokerage account was ' P• 43; Executor's Exhibit g, 82. Prior to the filing of the petition by the Brothers for appointment of an administrator the Brothers alleged that an Pro tem lifetime for the be Y application of the funds of nefit of the Executor Lottie during her were gifts that required an adjustment of t application of the federal estate tax unif ied credit in the he 43-44; Executor's Exhibits 7 Estate of Lottie. and 8. Tr. 2/23/12, pp• 83. In their Supplemental Pre-I-Ieari the Brothers' ng Memorandum fled ° asserted, for the first time n February 9, 2010, that the Executor "may have defraude " out of $1.5 million, that he procured ifts g throe d Lottie Lottie's funds for gh undue influence his own benefit without her ~ and that he used Exhibit 9. knowledge. Tr. 2/23/12 , p. S0; Executor's 84. The Brothers did not identi contentions of fraud an ~ any witnesses or exhibits in su d undue influence. pp°~ of their Executor s Exhibit 9. -]6- 85. On Saturday Februar their Supple Y 13, 2010, the mental Brothers sub Memoranda mitted an Addenda Tr• 2/23/12 m, which they aske ' p• 52' d the m to ' Executor' auditor to s Exhibit 10_ accept Hunt 86' In the February 13, 2 p~O font, witnesses and 010' addenda exhibits m, the Brothers provide which lists were required to months d a list of their earlier. Executor's E have xhibit 10• been disclosed more than tht-ee ~• The exhibit list provid Identify the docu ed by the Brothers on F meats the Brothers intended 88 W to ebruary 13, 2010 failed to hen the Brothers use as e~ibits. afte produced their Tr. 2/23/12 moon before the exhibits to the ~ pp. SS-56. hearing, the Brot Executor' the Exec hers ' s counsel on the utor ' included exhibits In discovery, Tr 2/23/12 that had p 57 not been disclosed to 89. The Brothers' exhibit checks hst ofFebru which the Brothers ary 13~ 2010 included lists ofhundreds Estate. EXec ~ E contended represented the utor s assets °f xhibit 10• that were missing from the 90• The checks in the Bro , writte thers exhibit list ofF n to the Brothers, to their ebruary 12~ 20 medical sister Charlotte, to ~ 10' included checks providers, and checks for the Lottie s housekeeper Executor's utilities for 'handyman Exhibit 10• Lottie s home. Tr 2/2 ~ and 3/12, pp. 54.55. 91 • The eleventh-hour su ' •~emorandum and Add omission of the Brothers' endum required Supplemental Pre- n°unt of ti counsel for the Hearing me under difficult ti Executor to me constrai spend a substantial nts to prepare to respond to the Brothers' -17_ allegations that the lists of hu ndreds of checks reflected wro 2/23/12, p. 54. 92 ngdoing by the Executor. T In their r. requested t petition for appointment ° fan hat the p administrator rPhans Cou pro teal the Brothers any, assets ~ appoint an administrator ro were wrongfully obtained by th Lottie' p tem to determine what, if s date o f e Executor fro death. m the Estate bet weep 1994 and 93• when the Brothers filed ofl~arshall as E their objections to the First 1 xecutor of the Estate ntermediate Executor's co °n August 22 Accounting ntinuin , 2008, they did 94 g tO serve as the Executor oft not object to the For more than he Estate. Acco eighteen months between the unting and the February 12 20 ad 10~ film July 25, 2008, filing of the E petitio ministrator pro tern by the Bro g °f the n for appoint state thers meet of engaged in an ,the Brothers never suggested an y improper transactio that the Execut ns with Lottie Burin or 9S• At the pre_hearin g her lifetime. g conference on February 12, 20 issue of the Brothers' re quest for appointment °f a 10, the Parkes argued the 96• At the pre-hearin n administrator g confere Pro tem. acknowled parties nce on Februa Es ged, and the ~' 12~ 2010 the tate Estate weed that Charlotte would obtain, fro Dixon does not m Charlotte dispute, that the $5,402 26 ,reimbursement for disb for Charlotte's Florida c urse menu in the amount of disburse °ndominium and, fro meets in the amount of m Marshall $5,402.27 ~ reimbursement for for the Executor's Florida co ndominium, -~s_ 97. At the pre-hearing conf Would re1mburse the erence oa Febru Estate in the ary 12' 2010 Marshall a securities amount of~9,933.96 b~'eed that he during administration of for loss of v the Estate. aloe of marketable 98• At the pre_heariag con Would ference on February 12 withdraw the claim for un • the Execut Paid expense o ' 2010, Marshall agreed that or as stated on page 26 oft f Interest for he funds loaned to the Estate b he First Intermediate Acco 99• At the pre_hearin Y g confere untiag• proposed schedule ace °p Febru of distrib a~' 12' 2010, all o ution of blectioas to the all parties agreed to terrain the QTIP Trust by all pantie ahoy of the trust and s Were withdrawn and provisions of the trust distrib agreement ution in accordance with the 100. At the pre_hearia the Bank g conference on February 12 would ale a revised schedule ' 2010 all parties agreed that estate in kind. of distrib ution, including distribution 101. At the °f the real pre-hearing conference oa Feb objections to the fees of the runny 12~ 2010 corporate and individual tru 'Marshall withdrew his 102. At the pre_hearing co steel of the QTIP Trust. come nfereace oa Febru ntioas kith respect to counsel any 12' 2010, with the exception ~ectio of its ob • ns fees and the fees of the audit of °r, the Bank withdrew all 103. At the pre_heariag con he Brothers ference on February 12 ~'°uld proceed at the ' 2010 hearia ' It was deteralined that ldendum to their su g with their evidence pplemental as to the alle pre-hearing memor gatlons in their aadula that the Executor had -19_ defrauded Lottie by using Lottie's funds for his own benefit through theft, deception, fraud, and misrepresentation, without the knowledge or permission of Lottie. 104. The Estate would then present its response. 105. At the pre-hearing conference on February 12, 2010, it was determined that all evidence and all authorities regarding liability for the fees and expenses of the auditor would be addressed at the hearing. 106. At the pre-hearing conference on February 12, 2010, it was determined that all issues and all evidence regarding liability for attorney fees incurred by the parties in addressing the various objections would be deferred and preserved for later disposition. 107. At the pre-hearing conference on February 12, 2010, it was determined that the bank would advance the expenses for the court stenographer from the corpus of the QTIP Trust, subject to recommendations of the auditor for reimbursement. 108. On February 13, 2010, the Brothers submitted to the auditor an addendum to their supplemental pre-hearing memorandum in which they confirmed that their sole remaining objection to the Estate Accounting was that the Executor defrauded Lottie by using Lottie's funds for his own benefit through theft, deception, fraud, and misrepresentation, without the knowledge or permission of Lottie. 109. On February 16, 2010, the order confirming referral, of the issue of the Brothers' request for appointment of an administrator pro tem, to the auditor was entered. 110. On February 19, 2010, the Brothers filed a petition requesting a sixty day continuance of the auditor's hearings that had been scheduled on December 9, 2009, for February 24, 25, and 26, 2010. -20- 111. The auditor recommended that the petition for appointment of an administrator pro tem and the intervening petition requesting a sixty day continuance of the auditor's hearings be denied on the basis that the delay of the Brothers in advancing the requests would prejudice the other parties in terms of delay and expense where the auditor saw nothing in the petition that the Brothers could not have raised at the time of the filing of their objections to the First and Intermediate Accounting in the Estate. 112. The recommendations of the auditor were endorsed by the Orphans' Court in the order of February 23, 2010. 113. The auditor's hearing was held on February 24, 2010. Tr. 2/23/12, p. 56. 114. At the hearing, the Brothers called the Executor as their only witness. 115. The Brothers presented no evidence that showed that the Executor had used assets of Lottie without her knowledge or permission or that he had procured funds from Lottie through theft, deception, fraud, or misrepresentation. 116. The Brothers presented no evidence that showed that assets of $1.5 million or in any other amount, were missing from the Estate. Tr. 2/23/12, p. 58. 117. In their petition for appoint of an administrator pro tem, the Brothers also asserted that Lottie had annual income of at least $300,000 per year. Tr. 2/23/12, p. 62. 118. The allegation that Lottie had annual income of at least $300,000 per year was contradicted by the information that the Brothers knew and had obtained in discovery prior to the filing of their petition for appoint of an administrator pro tem. Tr. 2/23/12, pp. 62-85. -21- 119. The Brothers prepared a summary of Lottie's cash flow from 1994 through her death in June 2007, which they provided to the Executor's counsel on February 23, 2010, as a proposed hearing exhibit. Tr. 2/23/12, p. 64; Executor's Exhibit 1 lA. 120. In the Brothers' summary of Lottie's cash flow, they calculated that approximately $1.59 million were "missing" from the Estate. Executor's Exhibits 11A and 11B. 121. The Brothers' summary of Lottie's cash flow included incorrect figures for Lottie's income from the QTIP Trust and from her brokerage account, and it included an incorrect asset balance for her brokerage account. Tr. 2/23/12, pp. 72-80; Executor's Exhibits 11A, 11B, 12, and 13. 122. The Brothers, as co-trustees of the QTIP trust, had filed the QTIP Trust Account which each of the Brothers verified prior to the filing of the QTIP Trust Account in January of 2009. Tr. 2/23/12, p. 68. 123. The QTIP Trust Account detailed every distribution made from the QTIP Trust to Lottie between 1994 and June 2007. QTIP Account, pp. 284-291; Tr. 2/23/12, pp. 72-73. 124. The QTIP Trust Account showed that during the period from 1994 to June 2007, Lottie received $2,007,800 in income from the QTIP Trust. Tr. 2/23/12, pp. 72-73. 125. In the Brothers' summary of Lottie's cash flow, the Brothers included an incorrect figure of $3,240,000 as Lottie's income from the QTIP Trust, which figure is more than $1.2 million more than Lottie actually received. Executor's Exhibits 11A and 11B. -22- 126. As a result, the Bothers' figure for Lottie's average income from the QTIP Trust was also inaccurate. Tr. 2/23/12, p. 73; Executor's Exhibits 11A and llB. 127. The actual average income to Lottie from the QTIP Trust was $148,726, while the Brothers showed that figure on their summary of Lottie's cash flow as $240,000. Tr. 2/23/12, p. 73; Executor's Exhibits 11A and 11B. 128. The Brothers' summary of Lottie's cash flow also incorrectly suggested that Lottie owned stocks and funds valued at $1 million from 1994 to the time of her death. Executor's Exhibit 11A. 129. By the end of 2008, the Brothers had obtained all of Lottie's brokerage account statements directly from the brokerage companies, pursuant to the authorizations signed by the Executor in June 2008. Tr. 2/23/12, p. 84; Executor's Exhibits 2C, 3C, and 12. 130. The Brothers proposed exhibit summarizing Lottie's brokerage account and the brokerage account statements, however, showed that in 1994, Lottie owned stocks and mutual funds in the amount of $460,000, and that for approximately the last seven years of her life, Lottie's brokerage account was valued at approximately $35,000. Tr. 2/23/12, p. 77; Executor's Exhibits 12 and 13. 131. An accurate analysis of the income and asset information available to them for more than a year prior to the filing of their petition for appointment of an administrator pro tem would have provided no evidentiary support for the allegations of the Brothers, in their petition for appoint of an administrator pro tem, that the Executor - 23 - defrauded Lottie by using Lottie's funds for his own benefit through theft, deception, fraud, and misrepresentation, without the knowledge or permission of Lottie. Executor's Exhibit 11B. 132. The Brothers' assertion of objections to the Estate Accounting that had no merit increased the attorneys' fees incurred by the Executor because the Executor communicated with counsel and the auditor on those objections, sought discovery on those objections, researched the legal basis for those objections, and addressed those objections in his pre-trial memoranda. Tr. 2/23/12, pp. 14-16. 133. The Brothers' dilatory conduct in pursing their objections increased the Executor's attorneys' fees because the Executor incurred the expense of repeatedly requesting a timeline for the resolution of the objections to the Estate Accounting, filing a motion seeking a discovery deadline and hearing schedule, making repeated phone calls to request the Brothers' overdue discovery responses, responding to the Brothers' motion to extend the discovery deadline, and appearing at a conference regarding that motion. Tr. 2/23/12, p. 42. 134. The Executor also incurred increased attorneys' fees because of the Brothers inappropriate conduct in pre-hearing matters. Tr. 2/23/12, pp. 50-51 and 59. 135. As a result of the Brothers' assertion of contradictory and changing legal theories, the Executor spent tens of hours in the weeks before the hearing researching the Brothers' new legal theories and preparing responses to them. Tr. 2/23/12, p. 59. -24- 136. The Executor also had an additional burden in preparing for the hearing on the Brothers' objections because the Brothers failed to identify their witnesses and exhibits until shortly before the hearing. Tr. 2/23/12, pp. 51-54. 137. After the hearing on the merits of the objections of the Brothers' which alleged that the Executor had defrauded Lottie by using Lottie's funds for his own benefit through theft, deception, fraud, and misrepresentation, without the knowledge or permission of Lottie, but before the auditor could file his report, the Brothers, on March 15, 2010, filed exceptions to the denial of their petition for appointment of an administrator pro tem. 138. By order dated Apri17, 2010, and filed April 12, 2010, the court adopted the recommendations of the auditor that the exceptions of the Brothers be denied. 139. On May 13, 2010, the Brothers filed their notice of appeal and statement of errors complained of on appeal. 140. On August 19, 2010, the Orphans' Court issued an opinion, pursuant to Pa.R.Civ.P. 1925 (a), in support of the denial of the exceptions of the Brothers to the denial of their petition for appointment of an administrator pro tem. 141. On April 5, 2011, the Superior Court quashed the appeal as being from an interlocutory order that was not appealable as of right and for which permission to appeal had not been granted. 142. On Apri120, 2011, the Brothers filed an application for reconsideration in the Superior Court on the asserted basis that the Superior Court erroneously stated in its -25- opinion quashing the appeal that the Brothers did not claim that the order from which the appeal was taken was a collateral order. 143. On May 26, 2011, the Brothers' application for reconsideration was denied, per curiam, and the record was remitted to the Orphans' Court on July 5, 2011. CONCLUSIONS OF LAW 1. The conduct of the Brothers in the litigation was sufficiently dilatory, obdurate, or vexatious to entitle the Estate to an award of attorney fees. The auditor concludes that it was not unreasonable for the Brothers to raise the questions that they raised in their objections to the Estate Accounting at the time that they raised them and to pursue discovery with respect to those issues. While the Brothers were clearly dilatory in pursuing those claims after they were raised, the auditor does not find that there was anything about their pursuit of those claims that reflected a determination to stubbornly ignore reality (In re Estate of Burger, 852 A2d 385, 391 (Pa. Super. 2004)), to pursue a sole purpose of causing annoyance (Berg v. Georgetown Builders, Inc., 822 A2d 810, 821 (Pa. Super. 2003)), or to cause additional legal work (Burger, supra, at 391). This is particularly so where the Brothers initially, forthrightly conceded that they would be unable to prove that Lottie was subject to incapacity or undue influence during her lifetime. Moreover, some of the objections of the Brothers were sustained, and Marshall did not withdraw his various objections, to the First and Final Account and Statement of Proposed Distribution of Trustees of the QTIP Trust, in either his individual capacity or as Executor of the Estate until the pre-hearing conference on February 12, 2010. Furthermore, with regard to delay, when the Brothers were slow -26- in pursuing discovery, the Executor did not pursue sanctions against the Brothers or their counsel. Moreover, when the Brothers were slow in pursuing discovery, the Estate was not incurring attorney fees because nothing was happening in the case, in general. The Estate does not identify any particular amounts of time that were incurred, prior to February 9, 2010, as a result of the delays or that the Estate was materially prejudiced as a result of the delays. Accordingly, the auditor does not recommend an award of attorney fees for the fees incurred by the Estate prior to the February 9, 2010, supplemental pre- hearing memorandum of the Brothers. However, the events that occurred after the Brothers chose to discharge their former attorneys are an entirely different matter. The Brothers have introduced no evidence other than that they voluntarily discharged the Martson Law Offices from their representation in this case. Therefore, the auditor finds that the withdrawal of the Martson Law Offices was the choice of the Brothers as opposed to a circumstance that was imposed upon them by the Martson Law Offices, and that would have left the Brothers scrambling for representation. As a result, the auditor places the responsibility for the events that transpired, after the Brothers discharged the Martson Law Offices, solely upon the Brothers. More than two and a half years after the death of their mother, the Brothers decided to renege on their counseled concession that their mother was not subject to incapacity or undue influence during her lifetime. The Brothers argue that the concession is not of record, but it was confirmed in the auditor's report on discovery issues. The concession was never refuted by the Brothers, and the Brothers did not call a representative of Martson Law Offices at the hearing to refute it or qualify it. Under -27- these circumstances, the argument of the Brothers that their counsel did not make the concession is vexatious in itself. In reneging on their counseled concession that their mother was not subject to incapacity or undue influence during her lifetime, the Brothers alleged, in their petition for appointment of an administrator pro tem, that their mother's mental health began to deteriorate in 1999, yet they never made any attempt to challenge the probate of her Will which was executed by Lottie six years later on November 16, 2005. The Brothers argue on page 23 of their proposed findings of fact and conclusions of law in opposition to the Executor's motion for attorneys' fees, that they had "a more than reasonable basis" to file their objections to the Estate Accounting and their petition for appointment of an administrator pro tem. On page 22 they say that they had "a compelling basis" for filing the petition for administrator pro tem. If their bases for filing their petition for appointment of an administrator pro tem were so reasonable and so compelling, the failure to raise them at the probate level and, in any event, until more than a year and a half after the filing of the Estate Accounting and two weeks prior to the scheduled hearing could very reasonably be viewed as reflecting a material purpose to annoy Marshall. Otherwise, why did they not raise objections of their mother's capacity at the probate level? There is no suggestion in this case that the Brothers are not intelligent, educated people. The Brothers do not allege that anything changed in the more than two and one-half years between the date of death of their mother and their filing of their petition for appointment of an administrator pro tem. The Brothers do not cite any information that was developed in discovery and that they did not suspect early on. -28- When they averred in their petition for appointment of an administrator pro tem that their mother's mental health began to deteriorate in 1999, they did not suggest that they were not of that view at the time of her death. The Brothers have never suggested that they did not relate the substance of the allegations in their petition for appointment of an administrator pro tem to the Martson Law Offices or, if they did not, why they did not. Therefore, their failure to timely raise those issues can only lead to the conclusion that their bases for alleging that Marshall was defrauding their mother and failing to include assets in her estate were neither reasonable nor compelling. All that the Brothers needed to do to fully investigate this case was to examine a single checking account, a single brokerage account, some credit card accounts, and two trusts for which the Brothers served as co-trustees. The evidence is that the Executor provided full and timely cooperation with all requests for discovery. Suggestions by the Brothers to the contrary color all of their other arguments in the case and reflect a vexatious malevolence that underlies their proceedings after February 9, 2010. Where the Brothers failed, in the two and a half years after their mother's death, with the benefit of counsel, to suggest that Marshall should be replaced and to develop evidence in support of those contentions that they raised in their supplemental pre- hearing conference memorandum and in their petition for appointment of an administrator pro tem, the auditor finds that the events that occurred after the February 9, 2010, date of the Brother's supplemental pre-hearing conference memorandum were obdurate, vexatious, and oppressive to the attorneys for the Estate and justify an award of attorney fees to the Estate. This is particularly so where the Brothers had full and direct -29- access to information in their roles as co-trustees of the QTIP Trust, beyond information that was available to them through discovery, to establish, to all reasonably objective satisfaction, that the Executor did not defraud their mother or fail to include assets in the Estate Accounting. Thunberg v. Strause, 545 Pa. 607, 682 A2d 295 (1996); Miller v. Nelson, 768 A2d 858, 862 (Pa. Super. 2001). Their failure to establish those facts to their own satisfaction and their alleging to the contrary, required the attorneys for the Estate to develop the facts in order to refute their contentions. The Brothers should be held liable for the attorney fees that the Estate was required to incur to make the record for them. The auditor did say in the report and recommendations on the issue of the objections of the Brothers to the Estate Accounting that the nature and manner of the Brothers' pursuit of their contentions did not rise to the level of vexatiousness or to the level of bad faith that would equate with gross negligence, concealment of assets, and misuse of assets that would be necessary to contravene the general rule that the costs of the audit be paid by the Estate. In re Estate of Vaughn, 315 Pa. Super. 354, 461 A2d 1318 (1983). However, the auditor did not say that the conduct of the Brothers was not vexatious. The level of vexatiousness required to contravene the general rule that the Estate pays the costs of audit and the level of vexatiousness required to support an award of attorney fees under the provisions of 42 Pa.C.S. § 2503 are two different issues. The Brothers argue that proof of sufficiently dilatory, obdurate, and vexatious conduct to support an award of attorney fees under the provisions of 42 Pa.C.S. § 2503 must be supported on the record in the trial court's findings of fact and that the trial court must make specific findings of the proscribed conduct to award attorneys' fees citing -30- Township of South Strabane v. Piecknick, 546 Pa. 551, 559, 686 A2d 1297, 1301 (1996); and Kulp v. Hrivnak, 765 A2d 796, 799 (Pa. Super. 2000). The fundamental vexatiousness in this case involves the advancement of allegations more than two and one-half years after they could have been raised, that were in contradiction of the counseled concession that they could not prove that Lottie was subject to incapacity or undue influence during her lifetime and then failing to produce any evidence in support of those allegations. The auditor does not see a material difference between stubbornly persisting in advancing unsupportable allegations and the eleventh-hour initiation of unsupportable allegations that could have been easily refuted with the most basic information that was readily at hand. The Estate argues that the Brothers' objections to the valuations of the jewelry and other personal property were vexatious because the Brothers had no justiciable interest in the valuation of those assets. The Estate also argues that the Brothers' objections to the allocation of the Unified Tax Credit had no basis in fact or law. The Estate further argues that the Brothers' objections to the set-off taken against the estate tax refund was asserted without any basis in fact or law. However, the auditor is unable to recommend an award of counsel fees in those respects because the Estate does not identify the particular amounts of time that were devoted to addressing those objections of the Brothers. In addition to the foregoing, the auditor notes that some objections of the Brothers' to the Estate Accounting were acknowledged by the Estate, and they were not acknowledged until the same pre-hearing conference of February 12, 2010, when the Brothers withdrew several of their objections to the Estate Accounting. Also, Marshall -31- did not withdraw his objections to the QTIP Trust Accounting in either his individual capacity as a beneficiary of the QTIP Trust, or in his capacity as Executor of the Estate, until the same pre-hearing conference of February 12, 2010. While the conduct of Marshall in this respect does not sink to nearly the depths of that of the Brothers, to the extent that the Executor argues that he should be awarded attorney fees for the late withdrawal of objections by the Brothers, he was guilty of the same conduct while, at the same time, acknowledging the pertinence of certain of the objections of the Brothers to the Estate Accounting, albeit involving relatively minor issues in comparison with the total value of the Estate. Although the Brothers essentially abandoned the contentions that they raised in their objections to the Estate Accounting the auditor does not recommend an award of attorney fees that were incurred by the Estate prior to the Brothers' supplemental pre- hearing memorandum of February 9, 2010, for the reasons set forth above. However, the auditor finds that the Brothers knew or should have known that the contentions that they advanced from and after February 9, 2010, had no reasonable basis in law or fact. Therefore, the auditor recommends an award of all of the attorney fees incurred by the Estate after February 9, 2010, with the exception of fees incurred in opposing the Brothers' appeal of the denial of their petition for appointment of an administrator pro tem. 2. The Orphans' Court division does not have the authority to award attorney fees for legal work in opposition to an appeal that was either dilatory, obdurate, or vexatious or that was frivolous for any other reason. -32- It would certainly seem to be logical that fees incurred in contesting an appeal involving claims that have been found to be dilatory, obdurate, or vexatious, or otherwise frivolous, in the court below would support an award of attorney fees for contesting the appeal. However, the Orphans' Court does not have the authority to award attorney fees incurred in contesting a frivolous appeal. A claim for those fees must be addressed to the Superior Court under Pa.R.A.P. 2744. See Mellon Bank v. Druzisky, 800 A2d 955, 958 (Pa. Super. 2002): Second, we find the trial court erred in awarding counsel fees for the costs incurred by Mellon during the pendency of the appeal. We make this ruling not based upon the potential merit of the award, but rather because Mellon failed to seek such fees with the Superior Court when the Druziskys appealed the summary judgment ruling. In the prior appeal, in addition to arguing against the merits of the summary judgment award, the Druziskys argued that the trial court should not have made reference to a future award of counsel fees in its summary judgment ruling. Mellon argued that the trial court had the discretionary authority to make a comment regarding a future claim for attorney fees, but Mellon did not claim that it was seeking such fees for the costs of defending the appeal. Mellon failed to seek counsel fees from the Superior Court pursuant to Pa. R.A.P. 2744. Rule 2744 permits an appellate court to award reasonable counsel fees "if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." If the appellate court finds such conduct occurred, it has the ability under Rule 2744 to remand the case to the trial court to determine the amount of damages. Pa. R.A.P. 2744. The trial court is not the proper authority to determine whether an appeal from its ruling is frivolous, taken solely for delay or whether the appellant's conduct is dilatory, obdurate or vexatious with respect to that appeal. The appellate court is the appropriate body to make such a ruling after an examination of the facts in light of the arguments and briefs of the parties. It is only where the appellate court makes such a finding that the case may be remanded to the trial court upon order of the appellate court for a calculation of fees. No such order was entered -33 - by the Superior Court in the prior appeal, perhaps because Mellon never sought such a ruling. Thus, it was improper for the trial court to award Mellon the costs of its attorney fees incurred in the prior appeal. Accordingly, we remand this matter to the trial court for the recalculation of fees, excluding those costs incurred prior to the filing of the complaint in equity and incurred in defending the prior appeal. Because the Orphans' Court division does not have the authority to award attorney fees for the contest of an appeal that was either dilatory, obdurate, or vexatious or that was frivolous for any other reason, it is unnecessary for your Honorable Court to determine whether or not the interlocutory appeal of the Brothers of the denial of their petition for appointment of an administrator pro tem was either dilatory, obdurate, or vexatious or whether it was frivolous for any other reason. 3. The facts of this case do not support holding counsel for the Brothers jointly and severally liable for an award of attorney fees for dilatory, obdurate, or vexatious misconduct in this litigation. The Estate argues that the Brothers' present counsel should be held jointly and severally liable with the Brothers for the attorney fees incurred by the Estate in addressing the dilatory, obdurate, and vexatious conduct of the Brothers that occurred after the Brothers engaged their present counsel. Although the auditor is not recommending that the Estate be awarded attorney fees for the conduct of the Brothers prior to the February 9, 2010, date of the Brothers' supplemental pre-hearing conference memorandum, the Estate claims that it should be awarded counsel fees for the conduct of the Brothers from as early as September 10, 2007. Executor's Exhibits 14 and 15. However, the Estate does not request that the -34- Martson Law Offices be held jointly and severally liable for the tens of thousands of dollars in attorney fees that the Estate claims prior to February 9, 2010. The Estate offers no explanation for these inconsistent contentions. The Brothers aver, in paragraph 52 of their petition for appointment of an administrator pro tem, that, prior to retention of their current counsel, they had not been advised that they could have sought the appointment of an administrator pro tem. Under those circumstances, present counsel for the Brothers would not have been discharging their professional duties to their clients by not taking the allegations of the Brothers at face value. There is no evidence to indicate anything other than that the present attorneys for the Brothers were doing the best that they could do, under difficult time constraints, to pursue the claims that the Brothers were determined, beyond the eleventh hour, to pursue. There is no evidence that it was the attorneys' idea to suggest that Lottie had been of weakened mind since 1999. They did not even know Lottie. There is no evidence that it was the attorneys who spawned the allegations in the supplemental pre-hearing conference memorandum that Marshall had defrauded his mother. While all of the claims of the Brothers since the entry of the appearance of present attorneys for the Brothers have been rejected up to this point, the fact that they have been unsuccessful does not establish malevolent motives on the part of counsel in contravention of the provisions of 42 Pa.C.S. § 2503. 4. The Brothers' request for dismissal of the Executor's motion for attorney fees is waived. -35- The Brothers filed a motion requesting that the Executor's motion for attorney fees be stricken or dismissed. The Brothers did not brief this issue, so the auditor recommends that the Brothers' motion be dismissed on the basis that issues that are raised but not briefed are waived. RECOMMENDATIONS The auditor is not recommending an award for attorney fees of the Executor prior to the February 9, 2010, date of the supplemental pre-hearing conference memorandum of the Brothers, so there is no need to address the reasonableness of fees prior thereto. As to the fees incurred by the Executor thereafter, the auditor finds the fees to be reasonable in terms of the amount of work performed, the character of the services performed, the difficulty of the problems involved, the importance of the litigation, the degree of responsibility incurred, the results obtained, and the amount of money or value of the property in question. In re LaRocca's Trust Estate, 431 Pa. 542, 246 A2d 337 (1968). The auditor recommends the award of $37,988 from the statement of March 15, 2012, after deducting the charges attributable prior to February 9, 2010. The auditor recommends the award of all of the statement of April 7, 2010, in the amount of $4,345 and all of the statement of May 10, 2010, in the amount of $10,000. As to the statement of June 15, 2010, it is not completely clear whether or not some of the charges are attributable to the Brothers' appeal to the Superior Court. The Estate acknowledges that, at the hearing, the auditor questioned the authority of the Orphans' Court to award counsel fees for a frivolous appeal. Where it is clear from the authority in the Mellon Bank case that the Orphans' Court does not have the authority to award attorney fees for -36- a frivolous appeal, the auditor does not recommend the award of attorney fees if there is any reasonable possibility that they may be attributable to the Brothers' appeal. For example, the charges of $768.50 on May 17, 2010, may involve some work that was not attributable to the appeal; but where it is unclear, the auditor does not recommend the award of any of those fees. Another example is the reference to the Commonwealth Court in the charges for May 20, 2010. Since the auditor is unaware of any Commonwealth Court involvement in these cases, the auditor infers that those charges were meant to refer to the Superior Court. From and after the charges for May 14, 2010, the auditor recommends the award of only the charges of $85 and $53. Where invoices have some charges that must be deducted as being attributable to the appeal of the Brothers and where the auditor is resolving all reasonable doubts as to appellate work in favor of exclusion of the fees, the auditor does not recommend reductions for discounts that were given by counsel to the Executor. The auditor recommends the award of $985 for the statement of June 15, 2010. The auditor recommends the award of the charges of $79.50, $79.50, and $34 for a total of $193 for the statement of July 14, 2010. The auditor does not recommend the award of the charges in the statements of August 12, 2010, September 13, 2010, October 7, 2010, November 11, 2010, December 20, 2010, January 12, 201 1, March 11, 2011, May 20, 2011, and June 8, 2011, all as being attributable to the appeal of the Brothers to the Superior Court. The auditor recommends the award of $55 for the statement of September 14, 2011. The auditor recommends the award of $3,500 for the statement of October 12, 2011. The auditor recommends the award of $8,300 for the statement of November 8, 2011. The auditor recommends the -37- award of $1,182.50 for the statement of December 8, 2011. The auditor does not recommend the award of any costs of counsel because they were not requested in the motion for attorney fees. The auditor recommends the award of $6,718 for the statement of January 10, 2012. The auditor recommends the award of $284 for the statement of February 8, 2012. The auditor recommends the charges in the statements of counsel for the Estate in preparing for the hearing for attorney fees because fees incurred to recover attorney fees are also recoverable. Appeal of Ciaffoni, 136 Pa. Cmwlth. 645, 584 A2d 410 (1990). The auditor does not have any evidence of the time expended by the Estate in pursuing the attorney fees after the statement of February 8, 2012. The total award recommended by the auditor is $73,357.50. Finally, it is recommended that the Estate be directed to pay the fees of the auditor and the court reporter for the same reasons as set forth in the auditor's report of September 19, 2011, with respect to the objections of the Brothers to the Estate Accounting. Date: May 23, 2012 Respectfully submitted, Wayn .Shade, Esquire Auditor -38- Elizabeth P. Mullaugh, Esquire Kimberly M. Colonna, Esquire McNees, Wallace & Nurick Attorneys for Executor of the Estate of Lottie Ivy Dixon Walter W. Cohen, Esquire Kevin J. Kehner, Esquire Obermayer Rebmann Maxwell & Hippel LLP Attorneys for Objectors in the Estate of Lottie Ivy Dixon Daniel L. Sullivan, Esquire Saidis, Sullivan & Rogers Attorneys for the Executor L. Dixon, individually Mark D. Bradshaw, Esquire Stevens & Lee Attorneys for M&T Bank -39- IN RE: ESTATE OF :THE COURT OF COMMON PLEAS OF LOTTIE IVY DIXON, :CUMBERLAND COUNTY, PENNSYLVANIA Deceased :ORPHANS' COURT DIVISION NO.21-07-0686 IN RE: ESTATE OF :THE COURT OF COMMON PLEAS OF GEORGE F. DIXON, JR., :CUMBERLAND COUNTY, PENNSYLVANIA Deceased :ORPHANS' COURT DIVISION QTIP -Trust : NO. 21-1994-0754 STATEMENT FOR SERVICES 10/6/2011 - 5/17/2012 10/ 6/11 Review emails from counsel and email to counsel 0.2 10/ 7/11 Review email from Attorney Kehner and email to counsel - no charge 0.0 11/14/11 Telephone from Katie Parr 0.1 11/25/11 Review objections of Marshall Dixon to the Auditor's Report and Recommendations and the Motion of Marshall Dixon for attorney fees and the objections of the Brothers to the Auditor's Report, and email to counsel 1.9 11/30/11 Review email from Attorney Kehner and email to counsel 0.1 12/14/11 Review the Brothers' response to the claim of Marshall Dixon for counsel fees and email to counsel 0.3 12/22/11 Review email from counsel for the Estate of Lottie Ivy Dixon, review response of Marshall Dixon to the Brothers' Motion to Strike and Dismiss the Executor's Motion for Attorney's Fees, review cited rules, and email to counsel 0.4 1/ 4/12 Review emails from counsel and email to counsel 0.2 1/ 6/12 Review email from Attorney Kehner and email to counsel 0.2 1/13/12 Review file and draft Petition to Extend Commission 0.4 1/17/12 Review email from Attorney Kehner, review file, telephone to Register of Wills, and email to counsel 0.3 2/ 1/12 Review the Brothers' Request for Production of Documents - no charge 0.0 2/20/12 Review email from Attorney Colonna and email to counsel - no charge 0.0 2/22/12 Review file and preparation for hearing on claim by the Estate for counsel fees 1.0 2/23/12 Appearance at hearing on claim for counsel fees 3.9 4/19/12 Preliminary review of submissions of the parties and draft Sixth Petition to Extend Auditor's Appointment 0.9 4/30/12 Review party submissions and draft Findings of Fact 7.2 5/ 1/12 Review party submissions and draft Findings of Fact 8.0 5/ 4/12 Review party submissions and draft Findings of Fact 7.5 5/ 7/12 Final preparation of Auditor's Report 3.5 5/17/12 Review emails from counsel and email to counsel 0.2 TOTAL 36.3 All matters in accordance with the above itemized statement for services $9,075.00 Balance from statement of September 19, 2011 20,290.00 TOTAL $29,365.00