HomeMy WebLinkAbout95-0953 OrphansIN RE: ESTATE OF
HOWARD K. FITTING, Deceased
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: ORPHANS' COURT DIVISION
:
: No. 21-95-953
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 5, 1999.
In this unusual decedent's estate case, an appeal has been filed to the Superior Court
by a beneficiary of the estate. The appeal, filed March 4, 1999, purports to be "from the final
decree removing the executor of the estate, entered in this matter on October 13th, 1998."
An examination of the record in the case indicates that the action taken by the court
on October 13, 1998, was a confirmation of the first and final account filed, and proposed
schedule of distribution, by the executor.~ The record further indicates that at no time was
the executor removed.
An order which the appellant may have intended his appeal to be from was issued by
the writer of this opinion on February 19, 1999. This order was entered in response to a
request by appellant, filed after the account was confirmed, that a certain petition which he
had filed in August of 1998 be revisited. The order read as follows:
AND NOW, this 19th day of February, 1999, upon
consideration of a request by counsel for Peter J. Fitting, aJk/a
Harold Louis Neal, for consideration of a Petition for Rule To
Show Cause Why Executor Should Not Be Removed, and it
appearing that the petition was filed and answered prior to the
filing of a First and Final Account and Statement of Proposed
Distribution, that neither petitioner nor the executor took further
action with respect to the petition, that no objections were filed
to the account and proposed distribution, that the account was
confirmed absolutely and distribution decreed in accordance
~ The account was confirmed absolutely, and distribution decreed in accordance with
the proposed schedule of distribution, by the Honorable Kevin A. Hess on October 13, 1998.
with the proposed schedule of distribution by the Honorable
Kevin A. Hess on October 13, 1998, and that no formal
exceptions were filed thereto, and it appearing further to the
court that the issue of the removal of the executor is now a moot
point, the request for action upon the petition is denied.2
To the extent that the present appeal to the Superior Court is intended, as the notice
of appeal states, to be from the decree on October 13, 1998, confirming the first and final
account and directing distribution in accordance with the proposed schedule, it would
obviously be untimely,3 inter alia.4 To the extent that the appeal is intended to be from the
order of court dated February 19, 1999, this opinion is written in support of the order,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
DISCUSSION
The decedent, Howard K. Fitting, died testate on December 7, 1995.s Letters
testamentary were granted to the executor herein, H. Paul Fitting, on December 21, 1995.6
The executor was one of the decedent's three sons, the other two being Joel David Fitting
and Peter James Fitting.? Peter James Fitting is the appellant herein.8
2 Order of Court, February 19, 1999.
3 See Pa. R.A.P. 903.
4 As noted in the text, no objections to the first and final account, and proposed
schedule of distribution, were filed prior to their confirmation, nor were formal exceptions
filed following the confirmation.
s See Petition for Probate and Grant of Letters, filed December 18, 1995.
6 Decree of Probate and Grant of Letters, December 21, 1995.
7 See Last Will and Testament of Howard K. Fitting, dated December 1, 1995.
8 Notice of Appeal, filed March 4, 1999.
2
Under the decedent's will, his estate was divided among his three sons.9 During the
pendency of the estate, Peter James Fitting a/k/a Harold Lou[is] Neal filed a Petition for Rule
To Show Cause Why Executor Should Not Be Removed. The petition asserted that a certain
animosity existed between the executor and the petitioner,jo It contained the following
averments in support of a request that the executor be removed:
a. Following the decedent's death, Paul took full use of
the 1994 Chrysler New Yorker and used it on a daily basis while
charging the estate for the car's monthly payment, mileage and
insurance.
b. In April, 1996, Paul finally tumed in the Chrysler New
Yorker, after he offered to purchase the car well below the
appraised price for that year.
c. The Executor claims that all of his Father's personal
property was sold prior to his death in November, 1995, when
an auction occurred at the family farm. This includes such
personal effects as the decedent's wedding ring, watch and
numerous other family heirlooms..In addition, the Executor sold
his own tractor, which was significantly worn and virtually of
no value, instead of his father's brand new John Deere tractor,
which should have been sold.
d. Article 8 of the Last Will And Testament of Howard
K. Fitting, directs that Executor shall be paid the lesser of either
5% of the estate or $5,000 as fee for management of the estate.
Todate, the Executor has taken over $12,000 in fees, not
including numerous trips and excursions, which have been paid
for by the estate.
e. Article 5 of the Last Will And Testament of Jeanne
Kimble Fitting, mother, which directs as to the portfolio valued
at $169,261.41 in 1992, went to the estate of Howard K. Fitting.
On November 4, 1995, it was valued at $181,931.42. There is
9 Last Will and Testament of Howard K. Fitting, dated December 1, 1995.
Jo Petition for Rule To Show Cause Why Executor Should Not Be Removed,
paragraphs 3-4.
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no accounting of what the value was at the time of Howard K.
Fitting's death, however, Paul Fitting wrote a letter saying it was
valued at $183,000.00 leaving a balance of $13,738.59, which
is income to Howard K. Fitting before his death. The Executor
needs to account for this money as to where it is being held and
what interest is has earned.
f. The Executor has never explained what portion of the
Gas Well Royalties from Jeanne Kimble Fitting, mother was
earned before Howard K. Fitting's death, which would become
part of the estate. ~l
A rule in response to the petition was issued by the Honorable George E. Hoffer of
this court upon the executor on August 21, 1998. The executor filed an answer with new
matter to the petition for his removal on September 14, 1998.12
The executor's answer specifically denied the allegations of impropriety;~3 and in new
matter he pointed out (a) that the petitioner had received an advance distribution of
$25,000.00 and had executed a release on July 8, 1998, agreeing to "hold the Executor and
his attorney harmless therefrom for any actions in connection with the advance or the
management of the estate,''14 (b) that a first and final account and schedule of proposed
distribution had been filed with the court,is and (c) that exceptions could be filed to the
account and schedule if the petitioner wished. 16
No reply was filed by petitioner to the executor's new matter. No further action was
~ l Id., paragraph 5.
~2 Executor's Answers to Petition for Rule To Show Cause Why the Executor Should
Not Be Removed, filed September 14, 1998.
13 Id., paragraphs 3-5.
in Id., paragraph 8.
is Id., paragraph 11.
~6 Id., paragraph 12.
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taken by petitioner on the petition. No objections were filed to the first and final account and
schedule of proposed distribution of the executor. No formal exceptions were filed to the
court's confirmation of the account and decree that distribution be made in accordance with
the proposed schedule. No appeal was filed from the confirmation. Several decrees awarding
real estate have been issued in accordance with the schedule of distribution.TM
Subsequent to the confirmation of the account, and proposed schedule of distribution,
petitioner sought to litigate the issue of the removal of the executor by resubmitting the
petition, along with a "Notice of Presentation," addressed to the estate's attorney. The notice
stated as follows:
Please be advised that the Petition for Rule to Show
Cause Why Executor Should Not be Removed to the Orphan's
Court in Carlisle PA, Cumberland County on February 2, 1999
at [indecipherable] of William Duncan, Esq. at any time for
consideration.
CERTIFICATE OF SERVICE
The undersigned Hans Unger Siegel, Esquire certifies and avers
that the within pleading was given to William A. Duncan,
Esquire at his above address on Jan. 28, 1999 by Fax.
In response to this submission, the writer of this opinion met with counsel for the
petitioner and for the estate in chambers, and thereafter took the matter under advisement.
After a careful review of the file in the case, the court entered the order,dated February 19,
1999, quoted at the beginning of this opinion.
DISCUSSION
With respect to first and final accounts and proposed schedules of distribution, the
Cumberland County Orphans' Court Rules provide for objections to be filed in advance of
confirmation. Objections are addressed in Cumberland County Orphans' Court Rules 6.10-1
~7 See Decree Awarding Real Estate, November 24, 1998 (Hess, J.); Decree Awarding
Real Estate, March 11, 1999 (Hoffer, J.).
and 6.10-2. Rule 6.10-1 provides as follows:
Objections to an account or to the statement of proposed
distribution, or both, must be filed in writing by not later than
9:00 a.m. (prevailing time) of the date fixed for confirmation
unless otherwise permitted by the Court prior to confirmation.
A copy of the Objections shall be served on the accountant or
the accountant's attorney.
Disposition of objections is governed, in pertinent part, by Cumberland County
Orphans' Court Rule 6.10-2(a):
If Objections are filed to an account or the statement of
proposed distribution, or both, upon the motion or petition of the
accountant or any party in interest, an auditor shall be appointed
to pass upon the Objections, unless the question raised by the
Objection is entirely a question of law, in which case the matter
may be placed on the next argument list for decision by the
Court; the Court may, in any case, appoint an auditor in its
discretion. If the Objection raises questions of fact, an auditor
may be appointed unless all parties interested join in an agreed
statement or stipulation of facts.
Exceptions to confirmations of accounts are addressed in Cumberland County
Orphans' Court Rules 7.1-1 and 7.1-2.28 A failure to file objections to a first and final
Cumberland County Orphans' Court Rule 7.1-1 provides as follows:
No Exceptions shall be filed to decrees, adjudications,
confirmations or other decisions or orders of court entered in
proceedings unless the right to except thereto is expressly
conferred by Act of Assembly, by general rule, or by special
order; and all decrees, adjudications, confirmations or other
decisions or orders of court, other than those to which
Exceptions are so allowed to be taken, shall be final and
definitive.
Cumberland County Orphans' Court Rule 7.1-2 provides as follows:
Decrees, adjudications, confirmations or other decisions
or orders Of court shall be confirmed absolutely as of course,
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account and schedule of proposed distribution will constitute a waiver of the matters
encompassed therein. See Estate of Tose, 482 Pa. 212, 393 A.2d 629 (1978).
Finally, reconsideration or review of a final order is generally not available after the
passage of 30 days. See Atlantic Richfield Co. v. d.d. l, Vhite, Inc., 302 Pa. Super. 276, 448
A.2d 634 (1982); Act of July 9, 1976, P.L. 586, § 2, 42 Pa. C.S. § 5505; Pa. R.A.P. 903(a).
In the present case, the appellant filed a petition in August of 1998 questioning
various financial aspects of the executor's administration of the estate and requesting his
removal as a consequence. An answer with new matter was filed to the petition. No reply
to the new matter was filed, no further action on the petition was sought by appellant, and
no objections to the executor's first and final account and schedule of proposed distribution
were filed. The account and schedule were confirmed, and neither exceptions nor an appeal
was filed to the decree. Under these circumstances, the court was of the view that appellant's
subsequent attempt to revive the petition to remove the executor involved an attempt to
litigate matters that had been waived, was untin), ely, and had been mooted.
William A. Duncan, Esq.
One Irvine Row
Carlisle, PA 17013
Attorney for Estate
unless written Exceptions thereto are filed within ten days after
the date of filing of such decree, adjudication, confirmation or
other decision or order of court. If timely Exceptions are filed
by a party, any other party may file Exceptions within ten days
aRer the day on which the first Exceptions are filed. However,
such Exceptions shall in no event raise questions which could
have been but were not raised by Objections to an account or by
claims presented in accordance with C.C.O.C.R. 6.10-1.
The effect of somewhat similarly worded local rules was discussed by the
Pennsylvania Supreme Court in Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977).
Hans U. Siegel, Esq.
Suite 900 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Attorney for Petitioner
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