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HomeMy WebLinkAbout06-19-12 (2)~BOM &' l~uTLILAKIS Jason P. Kutulakis, Esquire attorney LD. #: 80411 2 West High Street Carlisle, P~ 17013 (717) 249-0900 IN RE: THE ESTATE OF MARLIN L. MARSH a/k/a MARLIN LEROY MARSH late of South Middleton Township Cumberland County, Pennsylvania deceased fill. ~.,.-~ ;tom ~ ~ ~r ~ ` ~~";~~ ~ ~ ~~~~ JUN t 9 ~ 4: p0 CUMBER~lp CO., pq IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 21-11-68 ORPHANS' COURT DIVISION PETITION TO FMOVE MAR(' Ar~u~ATS AS COiTN4FT FnA ~ru~ PERSON T. RFnRFC~NTATi OF NF MART IN L ARCU Fc~re•r~ AND NOW, comes the Petitioner, Susan Ann Kuhn, by and through her attorney, Jason P. Kutulakis, Esquire, of ABOM & KUTULAKIS, L.L.P., and respectfully petitions for a removal of Marc Roberts as Counsel for the personal representatives of the estate of Marlin L. Marsh, and in support thereof avers the following: PROCEDURAL HISTORY 1. Petitioner is Susan Ann Kuhn, (hereinafter referred to as "Ms. Kuhn"), who currently resides at 151 South East Street, Carlisle, Pennsylvania 17013 and is represented by Jason Kutulakis, Esquire, of Abom & Kutulakis, L.L.P. 2. Respondent is Marc Roberts, Esq. (hereinafter referred to as "Attorney Roberts") whose place of business is 149 East Market Street, York, Pennsylvania, 17401. 3. An interested party is Judy Ann Estill, (hereinafter referred to as "Ms. Estill"), who currently resides at 2829 South Queen Street, Dallastown, Pennsylvania 17313. 4. Another interested party in this matter is Brenda Sue Slaybaugh, (hereinafter referred to as "Ms. Slaybaugh'~, who currently resides at 8 Thornhill Court, Carlisle, Pennsylvania 17015. 5. The decedent, Marlin Leroy Marsh, (hereinafter referred to as "Marlin" or "Decedent"), died intestate on November 27, 2010. See, Petition for Probate and Grant of Letters attached hereto as "Exhibit A." 6. The Register of Wills of Cumberland County, Pennsylvania granted Letters of Administration to Ms. Estill and Ms. Kuhn in January 2011. See, "Exhibit B." 7. Ms. Estill and Ms. Kuhn swore the Oath of Personal Representative of the Decedent on January 10, 2011. See, "Exhibit B." 8. A Certificate of Notice was filed with This Honorable Court on April 5, 2011 listing Marc Roberts, Esq. (hereafter Attorney Roberts) as Counsel for the Personal Representatives of the Estate of Marlin L. Marsh. See, Certificate of Notice attached hereto as "Exhibit C." 9. Ms. Slaybaugh, an heir of the Marsh Estate, renounced her right to administer in favor of Ms. Kuhn and Ms. Estill. See, "Exhibit A." 10. During the initial administration of this estate, Attorney Roberts represented both Ms. Kuhn and Ms. Estill as the personal representatives of the Marlin L. Marsh Estate. See, "Exhibit C." 11. Ms. Kuhn obtained David Baric, Esq. to represent her interest in a potential purchase of the Marsh Estate real estate property, and Attorney Banc began correspondence with Attorney Roberts to negotiate purchase of the real estate. 12. On April 18, 2011 Attorney Roberts wrote his first letter to Attorney Baric, mentioning that he does not represent "Judy Estill in any individual capacity." See correspondence attached hereto as "Exhibit D." 13. Attorney Roberts sent copies of his April 18th correspondence with Attorney Baric to both Co-Administrators of the estate, Ms. Estill and Ms. Kuhn. See, "Exhibit D." 14. On June 19, 2011, Ms. Kuhn e-mailed Linda Parrish, Attorney Roberts' secretary, asking for several estate documents, including estate checks, and cost estimates. See correspondence attached hereto as "Exhibit E." 15. Ms. Kuhn never received the estate checks, cost estimates, or a reasonable response from Attorney Roberts regarding the disclosure of the aforementioned estate documents. 16. On June 21, 2011, Ms. Kuhn disclosed that she had never received any information regarding Attorney Roberts' fee arrangement for his services and asked for information regarding his costs for the representation of the estate. See correspondence attached hereto as "Exhibit F." 17. Attorney Roberts never provided Ms. Kuhn with an accounting or explanation of the charges/fees for his representation of the estate. 18. In August 2011, Attorney Roberts began correspondence with Ms. Estill individually, failing to include Ms. Kuhn in this communication. See two (2) examples of correspondence written solely to Ms. Estill attached hereto as "Exhibit G." 19. On December 9, 2011 Attorney Baric officially withdrew his appearance as counsel after Ms. Kuhn elected not to proceed with the purchase of the Marsh real estate. See correspondence attached hereto as "Exhibit H." 20. Attorney Roberts continued to communicate with Attorney Baric despite Bark's formal withdraw of appearance for Ms. Kuhn, without forwarding any of the communication to Ms. Kuhn as Co-Administrator of the Estate, one of the Personal Representatives for the Estate for which Attorney Roberts remained Counsel. See correspondence attached hereto as "Exhibit I." 21. In a letter dated December 16, 2011 Attorney Roberts enclosed a copy of the Petition to Remove Ms. Kuhn and the fee for said Petition to Ms. Kuhn and Ms. Slaybaugh. See correspondence attached hereto as "Exhibit J." 22. In the December 16th letter to both Personal Representatives of the estate, Attorney Roberts takes the position of counsel for "his client, Judy Ann Estill" See, "Exhibit J." 23. On December 17, 2011, Ms. Kuhn requests once more, that Attorney Roberts respond to her question as to what he is charging to represent the estate. Mr. Roberts failed to respond to that request. See correspondence attached hereto as "Exhibit K" 24. On January 10, 2012, Attorney Roberts sent a letter, in his capacity as Counsel for the Personal Representatives of the Marsh Estate, to both co-administrators, Ms. Estill and Ms. Kuhn, recommending that they continue to perform their duties regarding the administration of the estate and suggesting that they both contact him. See correspondence attached hereto as "Exhibit L." 25. Despite his continuing position as Counsel for the Personal Representatives of the Marsh Estate and Ms. Kuhn's continuing position as a Personal Representative of the Marsh Estate, Attorney Roberts only informed Mr. Estill of the hearing with This Honorable Court originally scheduled for May 7, 2012. See March 8, 2012 correspondence attached hereto as "Exhibit M." 26. As of March 8, 2012, Ms. Kuhn had not retained another attorney to represent her interests and Attorney Roberts had not withdrawn his appearance as Counsel for the estate. 27. On May 18, 2012, Jason Kutulakis, Esq., attorney for Ms. Kuhn in the instant matter, sent a letter to Attorney Roberts to "suggest that [Attorney Roberts] [may] possess a professional conflict of interest in this case" and "respectfully ask [Attorney Roberts] to consider whether or not [Attorney Roberts] can continue in any capacity on behalf of Ms. Estill or with any involvement with this estate." See correspondence attached hereto as "Exhibit N." 28. On May 22, 2012, Attorney Roberts responded to Attorney Kutulakis' letter, stating that he "never left the job of being counsel to two co-administrators" and that "one co-administrator chose to leave me." See correspondence attached hereto as "Exhibit O." 29. On May 25, 2012, Attorney Kutulakis sent another letter to Attorney Roberts, remarking that he believes a conflict of interest still exists, and respectfully asked, once again, that Attorney Roberts reconsider his "position on whether or not a conflict exists." See correspondence attached hereto as "Exhibit P." 30. On June 19, 2012, prior to the filing of this Petition, Attorney Kutulakis contacted Attorney Roberts via telephone to request that Attorney Roberts reconsider his position and formally withdraw as counsel. Attorney Roberts indicated that he "represents the estate" and believed Attorney Kutulakis' concerns to be a "waste of time." PETITION TO REMOVE MARC ROBERTS AS COUNSEL FOR UDY ANN ESTILL AND THE ESTATE OF MARLIN L. MARSH 31. Prior paragraphs are incorporated herein by reference. 32. In Dorsett v. Hughes, the Superior Court of Pennsylvania held that an Attorney employed by an executor or personal representative does not represent the estate, but only the executor or personal representatives of the estate. Dorsett v. Hughes, 509 A.2d 369 (Pa. Super 1986). See case attached hereto as "Exhibit Q." 33. Despite Attorney Roberts claim that he represents the estate, the Dorsett court determined that an Attorney only represents the personal representatives of an estate, not the estate itself. 34. Attorney Roberts has engaged in communications with both co-administrators of the estate, as their counsel, and in communication with Ms. Estill, individually, as her Counsel in this action against Ms. Kuhn. See, "Exhibits J,L, and M" respectively. 35. Attorney Roberts has not terminated his relationship with Ms. Kuhn, as Counsel for the Personal Representatives of the Estate of Marlin L. Marsh, in accord with Rule 1.16 of the Pennsylvania Rules of Professional Conduct. 36. Attorney Roberts has failed to promptly inform Ms. Kuhn, one of his clients, of certain decisions and circumstances which required Ms. Kuhn's informed consent in accord with Rule 1.4 (a)(1) of the Pennsylvania Rules of Professional Conduct. See "Exhibit K" 37. Attorney Roberts has further failed to promptly comply with Ms. Kuhn's reasonable requests for information pertaining to the estate in accord with Rule 1.4 (a)(4) of the Pennsylvania Rules of Professional Conduct. Please see "Exhibit E" represented in paragraph 14, above. 38. Explanatory Comment [4] of Rule 1.4 of the Pennsylvania Rules of Professional Conduct states, "When a client makes a reasonable request for information...paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected." 39. Attorney Roberts has failed to reply promptly to Ms. Kuhn's request for estate documents, accounts, and fee arrangements, and has failed to advise Ms. Kuhn of a time when a response may be expected. 40. Rule 1.5(b) of the Pennsylvania Rules of Professional Conduct require a lawyer to communicate to the client, in writing, the basis or rate of the fee agreement within a reasonable time after commencing the representation. 41. Attorney Roberts has never provided a written fee agreement to Ms. Kuhn, one of his clients as a Personal Representative of the Marlin L. Marsh Estate, despite the filing of his appearance as Counsel as of Apri15, 2011. See "Exhibits C, F, and K" 42. Rule 1.7(a)(1) of the Pennsylvania Rules of Professional Conduct states that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client. 43. The current Petition to Remove Susan Ann Kuhn, filed by Attorney Roberts on December 16, 2011 represents Attorney Roberts' client, Judy Estill, against another of Roberts' clients, Susan Kuhn. 44. In the Explanatory Comments of Rule 1.7, Comment [31] mentions that "continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation." Further, "the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests..." 45. Attorney Roberts has a conflict of interest in his representation of the Personal Representatives of the Marsh Estate, which includes Ms. Kuhn, and his concurrent representation of Ms. Estill in a claim against Ms. Kuhn. 46. Attorney Roberts has breached his duty of equal loyalty to each client and has neglected to inform Ms. Kuhn of certain information, in particular the hearing on the Petition for Ms. Kuhn's Removal as Co-Administrator, which directly affects Ms. Kuhn's interests and the interests of the estate, which Attorney Roberts claims to represent. See, "Exhibit M." WHEREFORE, the Petitioner requests that this Court remove Attorney Marc Roberts from his position as Counsel for the Personal Representatives of the Marlin L. Marsh Estate. Respectfully submitted, ~ KUTULAxIS, L.L.P. ~` r L ~~ DATE Ja on P.`l~tulakis, Esquire preme Court ID 80411 2 West High Street Carlisle, Pennsylvania 17013 (717) 249-0900 Attorney for Susan Kuhn I verify that the statements made in the foregoing Petition to Remove Marc Roberts, Esq. as Counsel for the Personal Representatives of the Marlin L. Marsh Estate are true and correct. I understand that false statements herein axe made subject to the penalties of Pa.C.S.A. X4904, relating to unsworn falsification to authorities. e ``~~~~~ usan Ann Kuhn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGISTER OF WILLS PETITION FOR PROBATE AND GRANT OF LET ERS Estate of MARLIN L . MARSH ,Deceased ESTATE N : 21- 1 1 - [S(r(h a/k/a: MARLIN LEROY MARSH a/k/a: tea' SS NO: 168-26-4583 Petitioner(s) who is/are 18 yrs of age or older, apply(ies) for: COMPLETE SECTIO `A' or `B' AND `°C" as applicable: O A. Probate and Grant of Letters Testamentary orpAdministration c.t.a., or d.b.n..t.a. (complete Pan C also) and aver that Petitioner(s) is/are entitled to the aforementioned Letters ~ the last Will of the above-named Decedent, dated under and codicilO dated (State relevant citcumstances, e.g. renunciation, death of executor, etc. -- -= O ~. Except as follows, Decedent did not marry, was not divorced, and did not have a child born or ad pled after!ea6e~tion of t~ ~-r; r ~ instruments offered for probate; was not the victim of a killing, was never adjudicated an incapa stated pers'q's~,~as twt a ,. T~ party to a pending divorce proceeding at the time of death wherein grounds for divorce ha been estabtishfit~s defi/~n..~ed in~~'' .:-' 23 Pa. C.S.A. § 3323(g): .J % ^ Y - [~ B. Grant of Letters of Administration ~~; c_ ~.. _ ; (If applicable, enter d.b.n., pendent life, durance absents durante ml~ritate) • • ~ ~ r- ; r C. Petitioner(s), after a proper search, has/have ascertained that Decedent left no Will and was su sued by the c.rt `'~ O following spouse (if any) and heirs (If Administration c.t.a. or d.b.n,c.t.a,, enter date of Will in Se lion A and complete ii t of -n heirs); was not the victim of a killing; was never adjudicated an incapacitated person; and was n t a party to a pending divorce proceeding wherein grounds for divorce had been established as provided in 23 Pa. C.S.A. 3323(g), except as follows:_ Name Address Relationshi to Decedent PA 17013 _~ USE ADDITIONAL SHEETS IF ~ ECESS Y THIS SECTION MUST BE COMPLETED: %~~ to renounce 17015 Decedent was domiciled at death in Cumberland County, Pennsylvania, with his/her last amily or principal residence At Rli~rt r.,,..a----- .. ... (Street addmss with Frost Office and Zip Code, Municipality: Townshil Decedent, then 7 9 years of age, died __11 / 2 7 / 2 01 at Estimated value of decedent's property at death: (Month, Day, Year of death) lfdomiciled in PA If not domiciled in PA _[f not domiciled in PA _Value of Real Estate in Pennsylvania Total Estimated Value Location ofReat Estate in Pennsylvania: (Provide full address if possible.) 340 Oxford ROa Name(s) & iYlailing Addr Judy Ann Estill, ., w ~ t~0~ ,~ Susan Ann Kuhn, ° °"~ ~ uy ~umoenana county pending action by the Court 717/243-~83 death occurred) $ 6,00__ $ 0 S o.oo ~, Gardners, PA 17324 s(es) 2829 South_ Queen -3224 51 South East St., Page I of 2 EXHIBIT tsorough, City) (City and State All personal property Personal property in Pennsylvania Personal property in County ~ A OATH OF PERSONAL REPRESENTATIVE Commonwealth of Pennsylvania County of Cumberland SS The Petitioner(s) herein named swear or affirm that the statements in the foregoi g Petition are true and correct to the best of the knowledge and belief of Petitioner(s) and that, as perso al representative(s) of the Decedent, Petitioner(s) will well and truly administer the estate according law Sworn to or affirmed and subscribed before me this ~ day of Judy Ann s t i 11 , January ,?r-I? ~s~~~ ,P ~D/ii ~...17~~C" usan nn '~ For the Register DECREE OF PROBATE AND GRANT OF LE TERS c~ Estate of MARLIN L. MARSH e__`-_'~ -~ Deceased File Number: 21- 011 J t 7 ~ ~~ _ ~ r~ ~ AND NOW, this day of January 2011, in con ideration Q£ ' ~ ~"' the reverse side hereon, satisfactory proof havtng been presented before me, IT I DECRE t~ig~etition on = -Testamentary ~ of Administration Letfe~s ` are he eby gr ~ ' (IrappUgblq enter c.t.a., d.b.n., d.b.n.c.ta., etc.) anted ~ - Jud Ann Estill ari n ~• ~:' :.` ,= the above estate and that instruments(s) dated n / a `-'' in "' o admitted to probate and filed of record as the Last W>!II and Codicil(s) of Decede t nbed in the petition be -r, ~~z fi, - ~~ 1 ~~ Glenda Farner Sti'asbaugh, QrC h ~ lL-C : ~ • ~,~ Register of Wills FEES: Letters .................. ..$ Q .p-~} Will .................... .... Co ~cll(s) ................. (,Sh ort Certificate (~ )Renun i i s ( • a c at ons... .... ~~ Bond .......................... _ Other .......................... ... .. .............................. Automation FEE......... ... 5.00 JCS FEE .................. . 23.50 TOTAL ................ $~J - c~C~ Signature of Counsel Req iced to ter Appearance Atty's Signature PRINTED Name: M r c Roberts , E s q u i Supreme Court ID No.: 343 5 5 Address: Phone: Fax: Interim Form RW_02 revised 12.26.10 by Cumberland County pending action by the Court 149 East Market Stree Yor , PA 17401 717 843-1639 Page 2 of 2 EXHIBIT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION In re: Estate of MARLIN L. MARSH, No. 21-11-68 late of South Middletown Township, Cumberland County, Pennsylvania CERTIFICATE OF NOTICE UNDER RULE 5.6 a TO THE REGISTER: I certify that the notice of estate administration required by Rule 5.6(a) of the Orphans' Court Rules was served on or mailed to the following beneficiaries of the above captioned estate on or about April 5, 2011: Name Address Judy Ann Estill 2829 South Queen Street, Dallastown, PA 17313 Susan Ann Kuhn 151 South East Street, Carlisle, PA 17013 Brenda Sue Slaybaugh 8 Thornhill Court, Carlisle, PA 17015 Notice has now been given to all persons entitled thereto under Rule 5.6(a) except: none Date: April 5, 2011 Marc~Ro~erts, ire 149 East Market Street York, PA 17401 (717} 843-1639 ID No. 34355 Capacity: Counsel for Personal Representatives c.; O c-~ r ~ ~~ Q y l.. _... ~ ~~~ I _ W~~~ C~ ~ L ~ .,rti ~ -~ L.i i.i_ l.L_ _.__. ___ O , U V ~~ EXHIBIT ~ C LAW E3FFlCE OF ~++IIARC RQSER~°S 149 East Market Street York, Pennsy/vania 17401 April 18, 2011 David A. Baric, Esquire BARK SCHERER 19 West South Street Carlisle, PA 17013 Re: Estate of Marlin L. Marsh Dear Mr. Baric: Marc l~oberts, Esquire Sarah E. Buhite, Esquire Te/ephone (717) 843-1639 Facsimi/e (717) 845-8700 Thank you for your letter of March 29, 2011. First, let me clarify what I understand Judy Estill's position to be on any interest she has in the real estate. Judy has informed me that, as of this time, she has never specified any amount that she would be willing to pay for the real property, although she has stated that if she were to buy it, she would offer significantly higher than the $84,000 that was offered by Charles, Dorothy, and Susan. Although she may be willing to present an offer, Judy also acknowledges that a member of the public may be willing to pay more than family members, and she feels that it is in the best interests of all parties involved, and particularly Brenda Slaybaugh, if the property is presented for public auction. Doing this would avoid the conflicts that are apparently present when a fiduciary seeks to purchase estate real estate privately, and would eliminate the difficulties of presenting competing contracts between Judy and Charles, Dorothy and Susan. I am providing an accounting that has been supplied to me by Judy of the financial activity of the estate. With regard to your particular concern about antique coins, I can tell you that the coins that have been sold were disposed of with the assistance of John Freet, a retired certified public accountant, and knowledgeable coin collector. His separate accounting for the coins is also provided. A second sheet references some other military items that were sold. To my knowledge, Judy has done nothing in her activities as a co-executor that she did not believe in good faith was satisfactory to Susan. She will, however, take note of your concern in your letter of March 29, and will only act from this point forward with complete concurrence with Susan or by order of court . EXHIBIT uunx uu~ u~snS TTT~sS uu~ ~pnr ~aa •sTaug TsaP/~W s~zagog az~W `~Tazaauzg •aazzd buzTTas auk buTZT~ZX~~ ~~u~ ~~M ~ ut pros aq ~z ~~u~ suzaauoa 5utssazdxa ~juo ~nq 'a~~~sa auk ~o ~~zadozd auk ~nq o~ but~ad~oa you sz aus '~ua~o~ auk ~~ 'asn~aaq Tasunoa T~npznzpuz an~u o~ zau zoo paau ou aas I '~~za~d~a T~npzntpuz ~u~ uz TTT~sS ~pnr buz~uasazdaz you ~~ I •~au~ uaaM~aq ~szanoz~uoa ou asnaa pTnogs uazuM 'za~~~~ an?~~z~szuzmp~ auz~noz ~ sa szu~ Mazn o~ anuz~uoa saz~z~d u~oq '~TTn~adog •~zns~azs •S 'II auk ~q passaaozd aq o~ puoq z~M Opt$ s,usz2~ uzTz~~ aTq~ua o~ pazzz~~ou anau pua ubzs o~ s~M aus uatuM 'ZTOZ 'ZZ uaz~W uo zau an~b ~pnr ~~u~ zad~d auk uzn~az as~aTd u~sng ~~u~ za~~aT szu~ ubnozu~ xs~ TTzM I 's~aaCgns zau~o asau~ buzpz~baz nod u~TM buz~aazun~moa m~ I s~ buoT s~ Z abed TTOZ '8Z Tzzd~ t=ron•t: Sue Kum ,~ lnieiitc: ] Sent: Sunday, June 19, 2011 10:03 PM F£e: L'si1Q~ rat'!'"Si' S€,€b~ect: 2e: E~ieeting Ma,~h ~s~ae 3 of 5 I expect a PRIVATE conversation that is held 'in person' between myself, Marc and Judy. This estate needs to be a PRIORITY. I have stated over and over that time is of the essence. From my understanding Judy does not leave for Florida until Monday 6/20 so why was this meeting not held last week? I was available to attend any day at any time. What do I have to do to get results? I am frustrated with her noncompliance and total lack of communication. If this meeting is not held this week IN PERSON I will be forced to take further action for there is no more time to waste. I would like this settled amicably, in a time efficient manner, but unfortunately, that is not happening. I have spent hundreds of hours at the estate breathing in extreme levels of radon, drinking contaminated water, artd giving 100% trying to get this estate settled as she continually goes to Flordia. I have went above and beyond to save this estate money. I expect Judy being co~executrix to do the same. Her continual delays in communication have been happening for three months and her actions have cost the estate money. This needs addressed now. I would like to speak with Marc via phone. I will be available to speak with him tomorrow. My home phone is 717 243 2837 or cell As far as the lawn > Although I asked, I was never given any answers. First, I'd like to see the estimates from the companies Judy consulted to mow the lawn. 1 STILL do not know who she hired or at what cost to the estate? Did she sign a contract with this unknown company? Knowing the financial cost to the estate will determine whether or not my father will take on the responsibility. If he does choose to take on this responsibility I will not allow him to buy the gas for the mower That cost should come out of estate funds. Additionally, I'd like Judy to send me checks so I can pay the taxes BEFORE they go into penalty value. Penalty value will cost the estate additional money which is UNNECESSARY. [Quoted text hidden] Marc Roberts <Marc@marcrobertslaw.com> To: Sue Kuhn <suaie38@gmail.com> Cc: Linda Parrish <Linda@marcrobertslaw.com> Tue, Jun 21, 2011 at 9:59 AM _ ~ .~ ~~, `:.t,l _,' Yt~~i rr~,~l?S :,~1 °°.. ..~,?v~ ,.,~.~~ Ui~ c.?e ,:;ice i:1;t~ b _.~T"~ .a.,~!!i?h"' v`~'~ .. v. . _ ~_~~~ , r ~aCEk"..~ `t .~u~" ~r~ ~ _t ~ .., „. ~~. .. ~a~C _._ e.., .~.... ._ f"u, w, ii~~ _~3~~G, lil ~., C?IJ ~~ t -~. zz~~?C. G`./ i,.~ ~~ -_. ..._ .. -. '~ ~.,k G .~.. ...n ... _.. :._ - ~~, :c rL~~, ~ "`" .., .. EXHIBIT E ~, _.,~: _. ~- ~ ~~ r. ~ , -- ---©r i g i n a l Sul e s s a g e----- Erom: Sue Kuhn [manta: Sent: Monday, )une 20, 2011 8:49 PM To: Marc Roberts Subject: Re: FW: Meeting Marsh Estate Anon-private phone call is not satisfactory. I'm still waiting for the information about the lawn and taxes. 4 of 5 [Quoted text hidden] Sue Kuhn <suzzie38@gmail.com> To: Marc Roberts <Marc@marcrobertslaw.com> - _ __ _ _ _ Tue, Jun 21, 2011 at 9:45 PM judy wrote me another one of her letters .. the issues she brought up in previous emails i was going to address in person via the meeting at your office. i was effecting the meeting to be held quickly, without delay, and wasn't informed she was planning on going out of town again. it would be nice if thirxJs could be worked out but judy doesn't want to communicate and discuss issues, instead she would like to dictate with no compromise or not inform me at all. judy and i worked well together when we first started settling the estate and she repeated stated what a good job i did at the estate. it wasn't until she was in the room when my parents changed their wills that she became so utterly impossible and completely stopped communicating with me. after the wills were changed, she caused so much drama and conflict in the family due to her knowledge of the changes in the wills (which she shared with ALL family members) and my parents were shown such hatred and utter disrespect that mom and daddy made a choice to disown and disinherit both Judy and Brenda. I'm afraid she's letting her personal issues with our parents affect settling the estate. she needs to realize that i do not control my parents finances, thoughts or choices and to be angry at me for their decisions makes no sense. the marsh estate is so small and should be super easy to settle. i wish with all my heart that she would communicate with me so we could settle this with ease. marc, I'd like to know exactly what you are charging to represent the estate. i haven't even been given that information and i asked her months ago about your fee. I'm not sure why she feels she doesn't have to inform me of these details. i would also like to see all financial records, receipts, and appraisals if you could get Judy to please send me a copy of those. i choose to meet privately due to the interference of third parties=from persons who have no interest in this EXHIBIT LAW OFFfCE CF MARC Rf3B~~TS Marc R6berts, Esquire Sarah E. Buhife, Esquire Kathryn Nonas-Hunter, Esquire 149 East Market Street York, Pennsy/vania 17401 Te%phone (717) 843-1639 Facsimi/e (7171 845-8700 August 3, 2011 Mrs. Judy A. Estill 2829 South Queen Street Dallastown, PA 17313 Re: Estate of Marlin L. Marsh Dear Judy: In keeping with my discussions with Attorney Baric, please send me copies of all bank statements for the estate checking account and a copy of the check register at your earliest convenience. When I spoke to Mr. Baric about the practicalities of selling the house, he thought the house's location was very much in its favor, but that it did have some issues with radon and the manner in which the septic system is installed, which could be issues. He believes that everyone is in agreement that the house .is worth much more than the appraisal that was done on it immediately after your father's passing. Mr. Baric has a realtor he has worked with in the past named Bill Shearer, who is with a Prudential franchise, who he thinks would be a good person to do a market analysis on the property for further insight into its value in the local market. I did not agree with him in any specific way about how Mr. Shearer will get access to the property, but I wanted to let you know that you might be hearing from him or hearing that he has been to the house if Susan or someone else is going to be giving him access. Please feel free to call me with any questions. Sincerely, Marc Roberts MR/dasl EXHIBIT SAW OFFICE OF ItIIARC ROBERTS 149 East Market Street York, Pennsy/vania 17401 September 6, 2011 Mrs. Judy A. Estill 2829 South Queen Street Dallastown, PA 17313 Re: Estate of Marlin L. Marsh Sale of real estate Dear Judy: Marc Roberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter, Esquire Te%phone (7171 843-1639 Facsimi/e (7171 845-8700 Attorney Baric has identified Bill Shearer as a realtor he has confidence in in the Carlisle area. At his request, Mr. Shearer has identified what he believes to be four comparable properties and a list of issues with the condition of 340 Oxford Road that will have to be taken into consideration in its sale. Mr. Shearer has not given an opinion of value, nor has Attorney Baric provided his or Susan's analysis of this information. Please review this and give me a call. Sincerely, Marc Roberts MR/dasl Encls. B ARIC Attorneys at Law SCHERER LLC David A. Baric Michael A. Scherer Tricia D. Naylor Bret P. S]zaffer 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 (717) 249-5755 -Fax dbaric@baricscherer. com December 9, 2011 Marc Roberts, Esquire 149 E. Market Street York, Pennsylvania 17401 RE: Estate of Marlin Marsh Dear Marc: I am informed the Yanas' and Susan Kuhn do not wish to close on the real property of the estate for the reasons previously stated. I will be filing to withdraw my appearance in the estate matter as it would appear there is a potential for a conflict of interest. Very truly yours, BARIC SCHERER LLC David A. Baric, Esquire DAB/ar cc: Charles and Dorothy Yana Susan Kuhn File dab.dir/realestate/yana/oxford road/roberts6.ltr EXHIBIT i cy L~-1N OFFICE OF MARC ROBERTS Marc Roberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter, Esquire 149 East Market Street York, Pennsy/vania 17401 Te%phone (717) 843-1639 Facsimi/e (717) 845-8700 December 12, 2011 David A. Baric, Esquire Fax 717/249-5755 BARK SCHERER 19 West South Street Carlisle, PA 17013 Re: Estate of Marlin L. Marsh Dear David: I acknowledge your letter of December 9, 2011, which I received upon opening my weekend mail when I came to my office this morning. Based upon our previous correspondence, and having no indication that either party has changed their position, I am anticipating that Mrs. Estill and Ms. Kuhn and the Yanas will not agree on the refundability of the deposit. I would, nevertheless, like to have something signed by both the Yanas and Ms. Kuhn indicating that the Estate is authorized to market the property to others prior to the passage of the full 45 days given to them to settle in the November 26, 2011, contract. I am also understandably concerned on whether Susan will work with Judy in marketing the property to others and signing any contract that we are able to obtain. Please advise specifically on these matters. You have not advised on whether Susan will withdraw as a co- administrator. In anticipation that she will not, I am already drafting a petition to present to the Court to remove her. I would ask that you and she act as responsibly as is possible under the circumstances to put the Estate in the position where it can liquidate its real estate and generate funds with which to complete the administration. Sincerely, Ma c Robe s MR/dasl cc: Judy Ann Estill w/encl. LAW OFFICE OF MARL ROBERTS 149 East Market Street Vork, Pennsy/vania 17401 December 16, 2011 Office of the Register of Wills Cumberland County Court House One Court House Square Carlisle, PA 17013 Re: Estate of Marlin L. Marsh Dear Ladies: Marc Roberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter Esquire Te/ephone (717) 843-1639 Facsimile (717) 845-8700 Please file the enclosed Petition for Removal of Susan Ann Kuhn as Co-Administrator. Also enclosed is the $15 filing fee. By this letter, I wish to advise the Court that my client, Judy Ann Estill, will be out of state from December 16, 2011, through January 2, 2012, January 18 through January 30, 2012, and February 10 through February 21, 2012. I would appreciate your noting these times when my client will not be available for a hearing. Your cooperation in this regard is greatly appreciated. Should you require anything further, please feel free to give me a call. Sincerely, Marc Roberts dasl Encls. cc: Susan Ann Kuhn w/encl. Brenda Sue Slaybaugh w/encl. EXHIBIT r~ sue kuhn <suzzie38@gmail.com> t of 2 marlin marsh estate 1 message Sue Kuhn <suzzie38@gmail.com> To: Marc Roberts <marc@marcrobertslaw.com> Sat, Dec 17, 2011 at 1:07 PM Judy confirmed the electriGheat is on with no damage but there is no mention of her correcting her previous actions. No actions were taken to air out the house to reduce the extreme excess moisture. No actions were taken to reduce the extreme humidity with a dehumidifier. Hence, where has any damage control or remedy actions been taken? Her examination of the property and so called repair have been very incomplete. Due to her unilateral actions (intentional?) the property is not of the condition the day of the sale. Due to this situation, caused solely by Judy, the buyers have chosen to terminate the purchase the real property, of the estate. The day of sale the only agreement signed was settlement in 30 days. There was no responsibility given to the buyers to take over the electric or be responsible for the property. As co-administrator, I took it upon myself to see that debris from the sale and FIRE HAZARDS were cleaned up. I have solely and consistently been monitoring the estate to eliminate fire hazards since Mr. Marsh's death in 2010. It was due to my routine inspections of the property that I noticed the electric was shut-off. Immediately, I sent Judy and you both text/email regarding this situation..) heard back from neither of you! Hence, the decision of shutting off the electric was a decision made solely, with NO notification, by Judy and provisions to provide damage control are solely Judy's responsibility. Iwill take NO responsibility for her independent rogue actions. Was Judy was taking adverse positions against the property? As co-administrator, I am highly concerned with this unnecessary deterioration of the property. I am bringing it to your attention because you are also to be my representative to settle and protect this estate. In the mean time, the property is sustaining additional deterioration due to no action being taken to correct Judy's decision to shut off the electric with NO notification to myself, the Yana's or Attorney Baric. May I remind you, In Judy's email from June 2/ Judy clearly states there was NOTHING to be done to the property without the written consent of herself, .Brenda and I. It seems she chooses for her policies only apply to me, and not to herself, as she blatantly continues to act disrespectfully and chooses NOT to notify me of her actions/intentions. When does Judy become accountable and held to her own words(That nothing be done without the written consent of myself, her and Brenda?) When does Judy become responsible for her own actions? Judy has chosen to act in rogue manner and has put the estate in jeopardy! I am bringing this to your attention because you are also to be my representative to settle and protect this estate. Judy wants me removed as co-administrator? LoL My question is who is at fault in this situation? I was not notified, as usual. Why should I be punished for Judy's actions? I have never done anything to put the estate in jeopardy, nor would I. I HAVE CLEARLY AND REPEATEDLY DONE ALL I CAN TO PRESERVE AND PROTECT THE ESTATE AND ITS VALUE! This, Sir, I can easily prove thru photos and eyewitness accounts=all I have done to consistently take care of this property, which benefitted not only myself but also benefitted Judy and Brenda. Due to conflict of interest Mr. Baric has declined to represent me. I have sought council and would appreciate your cooperation, on my behalf, to allow my new attorney time to familiarize himself with the Marlin Marsh Estate. I will proceed further on the advice on my newly acquired council. Mr Roberts, let me close by asking you questions that I have previously asked you and you have chosen NOT to answer. Sir, I feel I have every right to have a answer to these questions. I feel you are obligated to respond! 1 * I have asked you what you are charging to represent this estate and was never given an answer by you. I EXHIBIT have asked you verbally and thru email. So, I'm asking you again for the third time. What are you charging to represent the estate? Additionally, I'd like to inquire about what you have charged the estate to date? 2"Additionally, while I'm asking you pertinent questions, I'd (ike to ask you AGAIN if you were aware that Judy was shutting off the electric, on Nov 28, 2011 @ gam, WITHOUT notifying myself, the Yana's or Mr. Baric? of 2 4/26/2012 9:32 AN Ll~V~I OFFICE QF I~IARC ROBERTS 149 East Market Street York, Pennsy/vania 17401 January 10, 2012 Mrs. Judy A. Estill 2829 South Queen Street Dallastown, PA 17313 Mrs. Susan Ann Kuhn 151 South East Street Carlisle, PA 17013 Re: Estate of Marlin L. Marsh Dear Judy and Susan: Marc Roberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter, Esquire Te%phone (717) 843-1639 Facsimi/e (717) 845-8700 Although a Petition by Judy to remove Susan as a Co-Administrator has been filed, until a Court schedules a hearing on that matter, you both continue to be Co-Administrators. The Estate still has business to attend to. It is my recommendation that you continue to perform your duties by pursuing an alternate sale of the real estate. I suggest that both Co-Administrators contact me regarding this. As before, this may be done directly or, if individual counsel is desired on your behalf, through counsel. Sincerely, Marc Roberts MR/dasl EXHIBIT LAS/ OFFICE QF II~lARG F~O~ERTS 149 East Market Street York, Pennsy/vania 17401 Te%phone (7171 843-1639 Facsimi/e (717J 845-8700 March 8, 2012 Mrs. Judy A. Estill 2829 South Queen Street Dallastown, PA 17313 Re: Estate of Marlin L. Marsh Dear Judy: Enclosed is a copy of the Order of Court scheduling a hearing on our Petition for Removal of Susan as Co-Administrator for Monday, May 7, 2012, at 9:30 a.m. Please mark your calendar accordingly. If you want to discuss what to do in the interim, please feel free to give me a call. Sincerely, Marc Roberts dasl Encl. EXHIBIT ~'YJ Marc r?oberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter, Esquire ~. !! OM LITLILAKIS ATTORNEYS AT LAW May 18, 2012 Marc Roberts, Esquire 149 East Market. Sheet York, PA 17401 Re: Estate ofMarlrn Marsh Our File No: 12-178 Dear Mr. Roberts: OFFICE LOCATIONS CARLISLE OFFICE (717) 249-0900 HARRISBURG OFFICE (717) 232-9511 CfLAMBERSBURG OFFICE (717) 267-0900 YORK OFFICE (717) 846-0900 Following our conversation, I began exploring the file in the Clerk of Orphans Court in the above-referenced matter. I note from your Petition for the Removal of Susan Ann Kuhn as Co-Administrator, that you filed in this matter, was done so in your capacity as attorney for Judy Ann Estill,. Petitioner. I also note that the Certificate of Notice Under fRule 5.6(a) docketed on Apri18, 2011, indicates that that was being filed in your capacity for personal representatives. 'This notation as being filed in the capacity was in the plural form of representatives. I also note that when the estate was opened in January of 2011, you entered your appearance on behalf of all the personal representatives that at that time were Judy Ann Estill, Susan Ann Kuhn, but that Brenda Sue Slaybaugh had renounced her role as Co-Executor. The Decree of Probate and Grant of Letters dated on January 14, 2011, contains your signature: as representing Judy Ann Estill and Susan Ann Kuhn. I am enclosing your documents .for ease of reference for you. I also note that your correspondence of December 16, 2011 indicates that your client was filing the petition and that client is noted as being Judy Estill. In your email of June 21, 2011, to Ms. Kuhn, you were rendering legal advise to both parties wherein you state "my advise to both parties at this point is to simply contact me when you can both agree to a date .and time to meet here in my office, in person, or by any agreeable means.." I also note on June 13, 2011, your email indicated that your secretary, Linda, would continue to contact both Ms. Kuhn and Ms. Estill in the hopes that you could arrive at a date "when we can meet and work out ways to move your estate administration forward." In your letter dated March 11, 2011, to David Baric, Esquire, it appears that you indicate that you are representing Judy Estill at that time and that she was not convinced that the offer that Susan had made to purchase Mr. Marsh's residence was in conformance with the PEF Code and that a petition be submitted to the court for approval of the sale. Nevertheless, you followed that statement up with indicating that Judy would be willing to better the current offer. Reply To: 2 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 (717) 249-0900 Fax (717)249-3344 N ___ __ f ,. }r { Marc Roberts, Esquire May 18, 2012 Page Two Just as when you pointed out to Mr. Bark that a possibility that a professional conflict of interest exists, I respectfully write to suggest that you yourself possess a professional conflict of interest in this case. It is clear from the date that Letters were granted, that you entered your appearance on behalf of both Judy Ann Estill and Susan Ann Kuhn. Approximately four (4) months thereafter, on April 8, 2011, you filed the Notice Under Rule 5.6(a), again indicating that you are counsel for both personal representatives, Judy Ann Estill and Susan Ann Kuhn. Nevertheless, on March 18, 2011, in your letter to David A. Baric, Esquire, there is suggestion that Ms. Estill was believing that Ms. Kuhn should be removed as Co-Administrator of the estate. Similarly thereafter there appears to have been a change in your role and thereafter becoming legal counsel to Ms. Estill solely. While there has been a great deal of tension in this case, ultimately resulting in Ms. Kuhn retaining Mr. Baric and ultimately thi law firm, because your legal representation began representing both Ms. Kuhn and Ms. Estill, Lbelieve that a professional conflict necessary has ensued for you .and respectfully ask you to` consider whether or not you can continue in any capacity on behalf of Ms. Estill or with any involvement with this estate. I certainly mean no offense by this correspondence,hut write with most sincerity.. I do not take these matters lightly in suggesting that a conflict does exist, but >n that vain feel it was necessary. I look forward to your response. ..Very truly yours, Abom & gutulalris, T T"p JPK/slf Enclosure cc: Susan Kuhn LAW OFFICE OF MARC ROBERTS 149 East Market Street Vork, Pennsy/vania 17401 May 22, 2012 Jason P. Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA-17013 Re: Estate of Marlin Marsh Dear Jason: Marc Roberts, Esquire Sarah E. Buhite, Esquire Kathryn Nonas-Hunter, Esquire Te%phone (717J 843-1639 Facsimi/e (7171 845-8700 I just read your letter of May 18, 2012. Please consider the following: 1. I have never left the job of being.. counsel to two co- administrators, both of whom should be acting in the interest of one estate. .One co-administrator chose to leave me. 2. I did not invite Mr. Baric to enter his .appearance for the Estate for a time, but he chose to do'so. I did not encourage any attempt at dealings between a co-administrator and the Estate. He did. 3. Where I have needed to, I have done the best I can do to reconcile differences between two co-administrators in a practical way. You can probably find plenty of semantics or theoretical issues that you can argue mean one thing or another. I don't think it will get you very far, and it definitely will not get the administration of this Estate any farther. 4. As I have already pointed out in another letter which you had not yet received as of May 18, Judy Estill's brief suggestion of interest in the real estate was intended to point out the absurdity of Susan's offer, and not to initiate a purchase. Her conduct shows no such interest. 5. I see no conflict between either Judy Estill's behavior or her stated goals and the best interest of the Estate. In all cases that I know of, if Susan had a problem with Judy's. actions, it was addressed. The same cannot be said about Susan. The best judge of this, however, would not be me; it would be Brenda Slaybaugh, who has the same interest in this Estate as an heir as do Judy and Susan, but who has no particular stake in who serves as its EXHIBIT May 22, 2012 page 2 personal representative. You might want to look at her point of view in your factual and conflict analysis. 6. Finally, I do indeed think I can continue to represent this Estate, and I think it is objectively obvious that Judy Estill can continue to administer it, if freed from the deadlock Susan has effectively put on the ability to act. If you think you have solutions to our present problems that do not involve trying to shake loose the people who have simply done their best to do their jobs, I am ready to hear about them. Sincerely, ~~ Marc Roberts MR/dasl __ t' __._ Marc Roberts, Esquire 149 East Market Street York, PA 17401 ~' O~ OFFICE LOCATIONS CARLISLE OFFICE T T T r (717) 249-0900 U ~ ~ LA K T S HARRISBURG OFFICE (717) 232-9511 CHAMBERSBURG OFFICE ATTORNEYS AT LAW (717) 267-0900 YORK OFFICE May 25, 2012 (717) 846-0900 Re: Estate ofMarlin Marsh Our File No: 12-178 Dear Mr. Roberts: To date I have yet to receive a copy of your file, nor a copy of the correspondence that you wrote either to Attorney Baric or directly to Ms. Kuhn. Again, this letter should ', renew my request for a copy of your. file as you entered your appearance representing both Ms. Estill and Ms. Kuhn when .the estate was opened.. Ms. Kuhn is certainly entitled to a complete copy. of the file. Additionally, please provide me a complete copy of the estate accounting which should include, but not be limited to, the source ofthe revenues .deposited on February 1, ', 2011 in the amount of $6,245.78. I also request identification to whom check #101. in the amount of $3,542.21. was made on February 3, 2011. I also request identification of the source of revenue for .the deposit made on November 28, 2011 in the. amount of $4,457.00. I would also like the identification of to whom check #112. in the amount of $2,220.82 was made on December 15, 2011. This correspondence should operate as a remark to your May 21, 2012 draft communication to the Department of Revenue regarding the tax return. Please provide me a copy of all written requests that you specifically made to Ms. Kuhn wherein you discussed the filing of a tax return and the consequences of failing to do so with her. I do not believe that Ms. Kuhn has been an impediment to your filing any return on behalf of this estate whatsoever. Until I receive a complete copy of your estate file in this case, I will not be able to remark as to whether or not a tax return is appropriate to be filed and whether or not you should be doing so on .behalf of this estate in light of what I sincerely believe to be a conflict of interest. This brings us to your May 22, 2012 correspondence wherein you indicate that you do not believe that a conflict of interest exists because Ms. Kuhn "chose to leave you." I do not believe the standards by which conflicts of interest are resolved are surrounded by whether or not a client chooses to leave his or her attorney. The mere fact that you entered your appearance on behalf of these two (2) individuals to assist them in facilitating their role Reply To: 2 WEST HIGH STREET CARLISLE, PENNSYLVANIA 17013 (717)249-0900 Fax (717) 249-3344_ EXHIBIT __ ~ -- __ -_ - - __ -- f I Marc Roberts, Esquire May 25, 2012 Page Two as co-administrators of this estate is certainly controlling as to whether or not you can take action against one (1) of them on behalf of the other. I believe this is a clear cut issue of a conflict of interest and respectfully ask you to please reconsider your position on whether or not a conflict exists. JPK/slf cc: Susan Kuhn Very truly pours, Abom & Kutulal~s, LLP ~y,_ Ja n P. Ku skis 509 A.2d 369 353 Pa.Super. 129, 509 A.2d 369 (Cite as: 353 Pa.Super. 129, 509 A.2d 369) ~-' Superior Court of Pennsylvania. Charles H. DORSETT, Sr. and Charles H. Dorsett, Jr., Appellants, v. Frances Newman HUGHES and Harry G. Hughes, Appellees. Argued Jan. 21, 1986. Filed May 14, 1986. Attorney brought complaint in assumpsit against executor of estate, seeking payment of fee. The Court of Common Pleas, Civil Division, Philadelphia County, No. 5204 June Term, 1983, Silverstein, J., granted executor's motion for summary judgment, and appeal was taken. The Superior Court, No. 02796 Philadelphia, 1984 held that attorney, who was dis- missed byexecutor ofestate approximately six weeks after issuance of letters, was not entitled to attorney fee of over $18,000, representing seven percent of alleged gross value of estate, even if attorney and executor had agreement that attorney was to repre- sent executor in return for such a fee; attorney was entitled merely to reasonable counsel fee for services rendered. Affirmed. West Headnotes j~ Attorney and Client 45 x'76(1) 45 Attorney and Client 45II Retainer and Authority 45k76 Termination of Relation 45k76 1 k. Act of Parties. Most Cited Cases Attorney and Client 45 ~~'134(1) 45 Attorney and Client 45IV Compensation 45k134 Premature Termination of Relation 45k134 1 k. In General. Most Cited Cases Page 2 Client may terminate his relation with attorney at any time, notwithstanding contract for fees, but if he does so, thus making performance of contract impos- sible, attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services which he has rendered. j2j Attorney and Client 45 X64 45 Attorney and Client 45II Retainer and Authority 45k64 k. What Constitutes a Retainer. Most Cited Cases Attorney employed by executor or personal representative does not represent estate or heirs of estate, but only executor or personal representative of estate. j~. Executors and Administrators 162 ~~216(2) 162 Executors and Administrators 162VI Claims Against Estate 162VI(A) Liabilities of Estate 162k216 Services Rendered to Estate 162k216(2) k. Services of Attorneys. Most Cited Cases Agreement by executor to pay to attorney for estate a fee consisting of percentage of gross value of estate is not enforceable; attorney fees in estate are based on reasonable value of services rendered and subject to approval of the Orphans' Court. j~ Executors and Administrators 162 X455 162 Executors and Administrators 162X Actions 162k455 k. Appeal and Error. Most Cited Cases In determining reasonableness of counsel fee in an estate, appellate court will not disturb decision of the Orphans' Courtin absence of abuse of discretion or error of law. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EXHIBIT 509 A.2d 369 353 Pa.Super. 129, 509 A.2d 369 (Cite as: 353 Pa.Super. 129, 509 A.2d 369) Executors and Administrators 162 '~.~==~'lll(6) 162 Executors and Administrators 162IV Collection and Management of Estate 16_ ~I~~(A) In General 162k108 Expenditures 162k111 Counsel Fees and Costs 162k111(61 k. Amount of Fees. Most Cited Cases Attorney who was dismissed by executor of estate approximately six weeks after issuance of let- ters was not entitled to attorney fee of over $18,000, representing seven percent of alleged gross value of state, even if attorney and executor had agreement that attorney was to represent executor in return for such a fee; attorney was entitled merely to reasonable counsel fee for services rendered. **369 *130 James J. Martin, Philadelphia, for appel- lants. *131 Vincent V. Carissimi, Philadelphia, for appel- lees. Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ. PER CURIAM: The undisputed facts in the case before us are that Emil Harman died on June 22, 1982, leaving a last will and testament in which he named the appellants, Charles H. Dorsett and Charles H. Dorsett, Jr. who are attorneys, as executors of the estate. The deceased also named Frances Newman Hughes and her husband, Harry G. Hughes, as executors. The will was drawn by Charles H. Dorsett, the father of Charles H. Dorsett, Jr. Although both Mr. Dorsetts are lawyers licensed to practice law in Pennsylvania, they are not associated in the practice of law and maintain separate offices. **370 After Mr. Harman died, it was agreed between the parties that Harry G. Hughes would serve as sole executor and the other named executors would renounce and they did in fact renounce. It was also agreed by Mr. Hughes that Charles H. Dorsett, Sr. would serve as the attorney for the estate. At this point the clear waters of agreement become muddied by conflicting allegations. There is controversy as to the amount of compensation to be paid to Mr. Dorsett, Page 3 notwithstanding that all of the parties on appeal agree that Charles H. Dorsett, Sr. was to be retained as at- torney for the estate and_ that Harry G. Hughes would serve as sole executor.~~~ Mr. Hughes claims that he retained Mr. Dorsett to represent him in his capacity as executor of the estate with no agreement as to fee. Mr. Dorsett claims that he was to receive a fee based on the gross value of the estate. FN1. It is admitted by the appellants that Charles H. Dorsett, Jr. performed no legal services for the Executor of the Estate of Emil Harman. Both Mr. Dorsetts and Frances Newman Hughes filed renunciations of their right to serve as executor and letters testamentary were issued on June 17, 1982 to Harry H. Hughes by the Register of Wills. Shortly thereafter, Mr. Hughes decided to retain other counsel and on August 2, *132 1982, he wrote to Mr. Dorsett telling him that he had retained new counsel for the estate and requesting that all files be turned over to his new counsel. After Mr. Dorsett was dismissed as counsel for the estate, he commenced an action in assumpsit in July, 1983, seeking damages in the amount of $18,175.43 representing 7% of the gross value of the estate which the appellants allege was $259,649.64.~"- In their complaint in assumpsit the appellants stated: FN2. The complaint alleged that the appel- lees "refuse to pay plaintffCharles H. Dor- sett, Esquire, the 7% commission agreed upon. " (Emphasis added.) This is contra- dicted by the answer of Charles H. Dorsett, Sr. to the request for admissions by the de- fendants below in which Mr. Dorsett, Sr. answered "It was suggested that Frances Newman Hughes be the sole executor. She declined and Harry G. Hughes was selected. It was agreed that Charles H. Dorsett, Jr. and Charles H. Dorsett, Sr. would be retained as counsel at a fee of five (5%) percent of the value of the estate and would do the work involved in the administration of the estate for two (2%) percent of the ex- ecutor's commission." (Emphasis added.) © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 509 A.2d 369 353 Pa.Super. 129, 509 A.2d 369 (Cite as: 353 Pa.Super. 129, 509 A.2d 369) It is clear that Mr. Dorsett is not seeking merely " 2 percent of the executor's com- mission." He is seeking 2% of the gross value of the estate for the performance of administrative duties and not 2% of whatever executor's commission Mr. Hughes may receive. 4. After the death of Emil Harman, Charles H. Dorsett, Harry H. Hughes, and Frances Newman Hughes met to plan the administration of the Es- tate. 5. The parties present agreed that Charles H. Dorsett, Jr., Charles H. Dorsett and Harry H. Hughes would resign as Co-Executors and that Frances Newman Hughes would be sole Executrix. The parties agreed further that Charles H. Dorsett would be retained as attorney for the Estate and that the combined attorney's fee and commission of 10% would be divided 7% to Charles H. Dorsett and 3% to Frances Newman Hughes. 6. Frances Newman Hughes then declared that she preferred that Harry G. Hughes be sole Execu- tor. 7. All parties present agreed that Harry G. Hughes would become sole Executor upon the same terms as previously agreed. *133 8. Charles H. Dorsett, Jr., who was not present at the meeting described above, later agreed to renounce based upon the agreement recited above. The matter was heard before a board of arbitrators and an award was entered in favor of the appellants in the amount of $18,175.43 and "against Harry G. Hughes, as Executor of the Estate of Emil Harman only." An appeal was taken from the award of arbi- trators and heard in the Orphans' Court Division of the Court of Common Pleas. The defendants below filed a motion for summary judgment which was granted by the Orphans' Court, by Silverstein,**371 J., and the appellants' claim was dismissed without prejudice to the right of Charles H. Dorsett and Charles H. Dorsett, Jr. to present a claim for services at the audit of the account of Harry G. Hughes, Executor of the Estate of Emil Harman, deceased. Page 4 1 2 Whether the claim for $18,175.43 based on an alleged agreement to pay that fee may be dismissed by grant of a motion for summary judgment, centers on whether an executor may dismiss a lawyer retained by the executor as counsel for the estate at any time even if there has been an agreement to pay a specified or ascertainable fee.~N3 The rule is succinctly stated in Szrndhei~z v. Bearer Co~~nty Building c~ Lo~rn .Asso- ciation 140 Pa.Su er. 529. 533. 14 A.2d 349 351 1940 FN3. The statement of question as stated by appellants is: When co-executors who are attorneys renounce their co-executorships upon the agreement of their fellow co-executors to retain them as counsel and to pay a speci- fied fee, is such an agreement enforceable? The complaint in assumpsit was against "Frances Newman Hughes and Harry G. Hughes, individually and as Executor of the Estate of Emil Harman, deceased." The statement of question involved implies imposition of liability on the appellees only as Executors. In any event, an indi- vidual would have no authority, real or apparent, to retain counsel for the executor of an estate. An attorney does not rep- resent the estate or the heirs of the estate, but only the executor or personal repre- sentative ofthe estate. See Ks-eide~a~. 42 D & C2d 46 (Lebanon County 1966). A client may terminate his relation with an at- torney at any time, notwithstanding acontract for fees, but if he *134 does so, thus making the per- formance of the contract impossible, the attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services which he has rendered. 3 4 In this case, the appellants claim a legal fee of over $18,000.00 based solely on an alleged agreement by the executor to pay a fee consisting of a percentage of the gross value of the estate."' Such an agreement, even if made, would not be enforceable. Attorney's fees in an estate are based on the reasonable value of the service rendered and subject to the ap- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 509 A.2d 369 353 Pa.Super. 129, 509 A.2d 369 (Cite as: 353 Pa.Super. 129, 509 A.2d 369) proval of the Orphans' Court. In determining the rea- sonableness of counsel fee in an estate an appellate court will not disturb the decision of the Orphans' Court in the absence of an abuse of discretion or error of law. Lohm Estate, 440 Pa. 268, 269 A.2d 451 1970 . See also Barth Estate, 170 Pa.Super. 163, 84 A.2d 256 (1951); Jones Estate, 163 Pa.Super. 129, 60 A.2d 366 (1948); Remiek's Pennsylvania Orphans' Court Practice, Vol. Sa, 1980, § 39.10 pp. 328-329. FN4. An analogous situation because of the fiduciary relationship involved is the rela- tionship of a township solicitor to the town- ship. The Supreme Court stated in Ballou v. State Ethics Committee 496 Pa. 127 134 436 A.2d 186. 189 (1981): Unlike a public employee, a solicitor has no enforceable right to continue in his po- sition for the tenure of his appointment. Our cases have held that, as a consequence of the solicitor's confidential relationship with the appointing body which he serves, the solicitor is removable at the will of the appointing power. Even if appointed for a fixed term and salary, the solicitor has no contractual right to recover any resulting loss in compensation. With respect to reasonableness of counsel fee in an estate: The facts and factors to be taken into considera- tion in determining the fee or compensation payable to an attorney include: the amount of work per- formed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was "created" by the attorney; the professional *135 skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the propertyin question.4 **372Huffrnan Estate (No. 3 ). 349 Pa. 59. 64, 36 A.2d 640, 15 ] A.L.R. 1384 lj 944]; Bickel Anneal, 388 Pa. 270. 276, 130 A.2d 498 [1957]; Fr-aiman Estate, 408 Pa. 442, 448, 184 A.2d 494 f 19621: Thompson Estute, 426 Pa. 270, 282, 332 (2321 A.2d 625. Page ~ Trust Estate of LaRocca, 431 Pa. 542. 546-47, 246 A.2d 337, 339 (1968). Decedent's estates are subject to the jurisdiction of the Orphans' Court Division of the Court of Com- mon Pleas, 20 Pa.C.S. ~ 711. Counsel fees payable to an attorney for an estate are therefore paid from funds subject to the Orphans' Court's jurisdiction and scrutiny. The executor must account to the court for fees paid. "An executor or a trustee is an officer of the orphans' court and accountable to such court for all his actions of commission and omission in the perform- ance of his fiduciary duties; such duty to account embraces all payments made from estate or trust funds by way of compensation to himself or his counsel. " Thompson Estate, 426 Pa. 270. 276, 232 A.2d 625 628 (1967). (Emphasis added.) See also Standard Pennsylvania Practice, 2d, § 4:74, page 420. Counsel for the executor or other personal rep- resentative in an estate has a fiduciary relationship with the personal representative who himself has a similar fiduciary obligation to the estate. It is not enough that the executor approve counsel fee, but the Orphans' Court which has jurisdiction over the estate from which the fee is to be paid must also approve its reasonableness. Where "the fee claimed [is] for ser- vices rendered in settlement of an estate, the court itself is amply able to appraise the reasonableness of the fee upon a mere recital of the services rendered." Lare Estate. 368 Pa. 570, 576, 84 A2d 334, 338 1( 951j. InBerkowitzEstate. 344 Pa. 485, 486.26 A.2d 295, 296 (1942) the Supreme Court noted: *136 The fixing of fees for services of counsel in the settlement of an estate, or other matter under the eye of the court, rests largely in the judgment of the court below, and its decision will not ordinarily be disturbed on appeal. As said in Re Goods Estate, 150 Pa. 307.310, 24 A. 623 [1892L "The amount of fees to be allowed to counsel, always a subject of delicacy, if not difficulty, is one peculiarly within the discretion of the court of first instance. Its op- portunities of judging the exact amount of labor, skill, and responsibility involved, as well as its knowledge of the scale of professional compensa- tion usual at the time and place, are necessarily greater than ours, and its judgment should not be interfered with except for plain error." See also In re Wood's Estate, 272 Pa. 8, 12, 13, 115 A. 865 [1922]; © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 509 A.2d 369 353 Pa.Super. 129, 509 A.2d 369 (Cite as: 353 Pa.Super. 129, 509 A.2d 369) In re Rambo's Estate. 327 Pa. 2~8. 266, 193 A. 1 1937 : In re Davidson's Estate. 334 Pa. 389, 395, 6 A.2d 73 [19391. In summary, the fees of an attorney for the executor of an estate must meet the test of reason- ableness notwithstanding an agreement to pay a specified fee or one based on the value of the estate. In the instant case, the appellants were not basing their claim on the reasonable value of their services, but only on alleged agreement to pay a fee based on a percentage of the gross value of the estate. Had Mr. Dorsett, Sr. served as counsel for the estate during its entire administration and had also performed ad- ministrative duties ordinarily performed by the per- sonal representative, the court at the audit of the account might have determined that the requested fee was reasonable and therefore approved it. However, such was not the case, as Mr. Dorsett served only for a short period of time when the executor removed him as counsel, as he had a right to do. Summary judgment was entered in favor of all appellees. The entry of summary judgment is proper under Pa.R.C.P. 1035 when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Thorsen v. Iron & Glass Bank. 328 Pa.Super. 1.35, 476 A.2d 928 (1984). In considering a motion for *137 summary judgment the **373 court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp.. 334 Pa.Super. 36. 482 A.2d 1067 (1984~;.Ackerv. Palma. 260 Pa.Super. 214, 393 A.2d 1230 (1978); Thompson Coal Co. v. Pike Coal Ca, 488 Pa. 198.412 A.2d 466 (1979}. Notwithstanding anagreement to pay a deter- minable fee to Mr. Dorsett, Sr., the executor was free to terminate the relationship of attorney and client at any time and he did so shortly after the administration of the estate commenced. The appellees were entitled to judgment as a matter of law in a claim based on an alleged agreement to pay a specific or determinable fee. The appellants are not without a remedy and the Orphans' Court by its order of September 6, 1984, specifically permitted them to present a claim for legal services at the audit of the executor's account. At that time, the Orphans' Court may in the exercise of its sound discretion, award a reasonable counsel fee to Mr. Dorsett, Sr. Order affirmed. Pa.Super.,1986. Dorsett v. Hughes 353 Pa.Super. 129, 509 A.2d 369 END OF DOCUMENT Page 6 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. ('ER TFI A E OF ERVI F AND NOW, this 19th day of June, 2012, I, Shannon Freeman, of Abom & Kutulakis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Petition To Remove Marc Roberts, Esq. as Counsel for the Personal Representatives of the Marlin L. Marsh Estate by depositing, or causing to be deposited, same in the United States Mail, postage prepaid addressed to the following: Marc Roberts, Esquire 149 East Market Street York, PA 17401 Attorney for Judy Ann Estill AND Brenda Sue Slaybaugh 8 Thornhill Court Carlisle, PA 17015 !~~ Free