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HomeMy WebLinkAbout11-08-04 IN RE: ESTATE OF DAVID M. GROSS, IN THE ORPHANS COURT CUMBERLAND COUNTY, PENNSYLVANIA NO. 2103-1065 BRIEF OF ELIZABETH M. BARTH IN OPPOSITION TO THE PETITION OF BRIAN J. GROSS TO REMOVE HER AS ADMINISTRATRIX OF THE ESTATE I. BACKGROUND In approximately, 1995, Elizabeth Barth and David Gross met. From that point, they experienced a loving relationship. They lived together and to many were husband and wife. They had plans to have a formal church wedding. However, concurrent with those plans, the two entered into a common law marriage. Unfortunately, on September 22, 1998, the plans were derailed. David Gross visited a new home that was under construction. He was with another employee of Linglestown Lighting and they had planned to provide lighting specifications for the home. An uncovered stairway hole was approximately four feet from the entrance to the house. Mr. Gross entered the building and was looking at the ceiling to assess the lighting. He then fell through the hole. As a result, he sustained severe and permanent injuries. Suit was filed by David Gross against Archibald Builders in the Court of Common Pleas of Dauphin County, Pennsylvania, docketed to No. 2601 S 1999. Unfortunately, David Gross did not live to see the conclusion of the action. On August 17, 2003, he died. The case was ultimately settled for a total of $450,000. The net amount of 1 the settlement, after paying legal fees, costs and a subrogation lien, is $156,255.26. By agreement of the parties, the proceeds are being held in escrow by Post and Schell. On December 26, 2003, Ramona Gross, mother of David Gross, was appointed Administratrix of the Estate of David Gross. On February 4, 2004, Ramona Gross died. Thereafter, on April 12, 2004, Elizabeth Barth filed a Petition to Revoke the Letters of Administration that had been issued to Ramona Gross and Requesting that Letters of Administration be Issued to her. In support of her Petition, Elizabeth Barth provided an Affidavit of Common Law Marriage. Based upon the documentation provided, the Register of Wills, on April 20, 2004, granted Letters of Administration to Elizabeth Barth. On May 11, 2004, Brian John Gross filed a "Petition for Revocation of Letters and Removal of Administratrix." The Petition was directed to the Court and not the Register of Wills. The Petition was made pursuant to 993181 and 3182 of the Probate, Estate and Fiduciaries Code ("PEF Code"). The "wherefore" clause indicated that Gross "requests This Honorable Court to remove Elizabeth M. Barth as Administratrix of the Estate, and appoint Brian John Gross as Administrator." The PEF code makes a distinction between a petition to revoke letters of administration and a petition to remove an administrator. More importantly, only the Register of Wills may revoke letters of administration. 20 Pa.C.S.A. 93181. The Orphans Court may review the decision of the Register of Wills, however, the review is limited to reviewing the evidence before the Register in order to determine whether an "abuse of discretion" has occurred. 2 The Orphans Court has the jurisdiction and authority to remove an administrator. 20 Pa.C.S.A. ~3182. However, the power is limited to a few instances. It is submitted that there is no basis to remove Elizabeth Barth as the Administratrix of the Estate.1 A hearing is scheduled for November 8, 2004. Based upon the provisions of the PEF code, it is submitted that no testimony should be taken regarding the common law marriage of David Gross and Elizabeth Barth. Since Brian Gross has invoked the jurisdiction of the Orphans Court and not the Register of Wills, The Court is limited to reviewing the decision of the Register of Wills based upon the information and documentation that was available to the Register at the time of the decision to grant the Letters of Administration to Elizabeth Barth. II. LEGAL DISCUSSION Section 901 of the Probate Estates and Fiduciaries Code provides: Within the county for which he has been elected or appointed, the register shall have jurisdiction of the probate of wills, the grant of letters to a personal representative, and any other matter as provided by law. 20 Pa.C.S.A. ~901. In the instant case, Petitioners have applied to the Orphans Court to revoke the letters of administration pursuant to 20 Pa.C.S.A. ~~3181 and 3182. Section 3181 provides that "[t]he register may revoke letters of administration granted by him whenever I The Petition filed by Brian Gross referenced both sections 3181 and 3182. However, the Trial Brief submitted by Brian Gross references only g3181 as a basis for the removal. This may mean that Brian Gross is no longer seeking removal pursuanno g31821. However, this Brief will discuss bothsectiolls in the evellt that Brian Gross raises g3182 at the hearing. 3 it appears that the person to whom the letters were granted is not entitled thereto." (emphasis supplied). The Orphans Court does not have jurisdiction to revoke letters of administration even if they were improperly granted. That authority rests solely with the Register of Wills. It has long been held that a petition to vacate letters of administration on the ground that they were improvidently issued, must be made to the register and not to the orphans' court, which has no original jurisdiction to revoke letters. See e.g., Johnston's Appeal, 11 A. 78 (Pa. 1887); see also: Farrell's Estate 1 W.N.C. 15, (1874); Sudam's Estate, 3 W.N.C. 305, 1877; Potts's Estate, 37 L.1. 182 (1880); Mackin's Estate, 14 Phila. 328 (1881). The proper procedure is to request that the Register revoke the letters of administration. In deed, the Supreme Court has indicated that a petition seeking revocation of letters of administration and requesting that letters be issued to another is irregular and should be dismissed. See In re: Neidig's Estate, 38 A. 1033 (Pa. 1898). An interested party may appeal the decision of the Register of Wills to grant letters of administration. However, the scope of review is narrow. In In re Estate of Dodge, 522 A.2d 77 (Pa.Super. 1987), the Register of Wills of Bradford County had issued letters of administration to Tonya Yoder for the Estate of Ronald Dodge. Ms. Yoder petition for letters averred that she was the widow of Mr. Dodge. Thereafter, the mother of Dodge's only son filed a petition to revoke the letters on the basis that Yoder and Dodge were not legally married. The register of wills took testimony and determined that a common law marriage existed. Petitioner then filed an appeal to the Orphans Court pursuant to 20 4 Pa.C.S.A. 9908(a). The Orphans Court of Bradford County reversed the decision of the Register of Wills. On appeal, the Superior Court affirmed. Initially, the Court reviewed the applicable standard of review. The Court stated: The statute commits to the Register of Wills, in the first instance, the duty to issue letters of administration. See: 20 Pa.C.S. 9 3155(b). On appeal from the Register's action, where additional evidence is not received, judicial review is confined to a determination of whether the Register abused his or her discretion in the issuance of letters to an administrator. 522 A.2d at 78. Thus, it is submitted that the Petition for Revocation should be dismissed. The Court simply has no jurisdiction. To the extent that the Court wishes to treat the Petition as an appeal, there is no evidence of record to reverse the decision of the Register of Wills. In the instant case, the Register of Wills issued letters of administration to Elizabeth Barth. At that time, Ms. Barth took an oath and completed a petition averring that she was the common law wife of David Gross. In support of her petition, she provided the Register with a copy of the Affidavit of Common Law Marriage. In addition she provided documentation from the Social Security Administration that she been declared the spouse of David Gross and was receiving widow benefits. That is the only testimony before the Register. As such, the Court should determine that the Register did not abuse her discretion in granting letters to Elizabeth Barth. Petitioner has also filed a Petition to Remove pursuant to 93182 of the Probate, Estates and Fiduciaries Code, which provides: 5 The court shall have exclusive power to remove a personal representative when he: (1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or (2) Deleted. 1992, April 16, P.L. 108, No. 24, ~ 4, effective in 60 days. (3) has become incapacitated to discharge the duties of his office because of sickness or physical or mental incapacity and his incapacity is likely to continue to the injury of the estate; or (4) has removed from the Commonwealth or has ceased to have a known place of residence therein, without furnishing such security or additional security as the court shall direct; or (4.1) has been charged with voluntary manslaughter or homicide, except homicide by vehicle, as set forth in sections 3155 (relating to persons entitled) and 3156 (relating to persons not qualified), provided that the removal shall not occur on these grounds if the charge has been dismissed, withdrawn or terminated by a verdict of not guilty; or (5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office. 20 Pa.C.S.A. ~3182. Removal of a fiduciary is a drastic action which should only be taken when the estate is endangered and intervention is necessary to protect the property of the estate. Scientific Living, Inc. v. Hohensee, 270 A.2d 216, 440 Pa. 280 (1970), cert. denied 91 S.Ct. 2189, 402 U.S. 1012, 29 L.Ed.2d 435, rehearing denied 92 S.Ct. 28, 404 U.S. 874, 30 L.Ed.2d 121 (1971). In In re White, 484 Pa. 763 (Pa. 1984), the Supreme Court interpreted ~3182 in the context of an attempt to remove a trustee. The Court reaffirmed that removal is a drastic remedy and "the need for such action must be clear." Moreover, "[u]ntil such time as [the trustee] violates some fiduciary duty, he can not be removed." Id at 765-766. In the instant case, it is submitted that there is no basis for the removal of Elizabeth Barth. There is no allegation of any wrong doing on the part of Barth. Any 6 . concern about the assets of the Estate is without merit. The proceeds of the settlement are being held in escrow. They may not be released without further Order of Court. Ms. Barth may proceed to administer the Estate and then prepare a First and Final Accounting. Notice will be given in accordance with law and any interested party can then object to the distribution. As such, there is no basis to justify the removal of Elizabeth Barth as Administratix of the Estate of David Gross. III. CONCLUSION For all of the foregoing reasons, and in light of the authorities cited therein, Elizabeth Barth urges This Honorable Court to dismiss the Petition of Brian Gross to Revoke Letters of Administration and to Remove Elizabeth Barth as Administratrix. Respectfully submitted, Cl- By: Date: (( 1'6" / 0 tf James G. Nealon, III, Esquire 1.0. #: 46457 NEALON & GOVER, P.C. 2411 North Front Street Harrisburg, PA 17110 717/232-9900 7