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HomeMy WebLinkAbout93-104 orphansIN RE' ESTATE OF · IN THE COURT OF COMMON PLEAS OF ELIZABETH M. SULLIVAN, · ADAMS COUNTY, PENNSYLVANIA Deceased ' · ' NO. 104 ORPHANS' 1993 · IN RE' REQUEST FOR ATTORNEY'S FEES BEFORE HESS, J. ORDER AND NOW, this 1 5'" day of January, 2000, the petition of the residual beneficiaries under the Last Will and Testament of Elizabeth M. Sullivan, deceased, for an award of counsel fees as part of their bill of costs in this case is DENIED. BY THE COURT, Henry Heiser, III, EsquireKevj,ff A./Hes For the Objectants Jan G. Sulcove, Esquire For Wilson College David R. Breschi, Esquire For Adams County Bank :rim IN RE' ESTATE OF · IN THE COURT OF COMMON PLEAS OF ELIZABETH M. SULLIVAN, · ADAMS COUNTY, PENNSYLVANIA Deceased ' o ' NO. 104 ORPHANS' 1993 IN RE: REQUEST FOR ATTORNEY'S FEES BEFORE HESS, J. MEMORANDUM AND ORDER An on-record argument was held in this case on October 29, 1999. There are certain salient facts that are not in dispute. The decedent in this matter died in June of 1993. One of the assets in her estate was a large farm located in the western part of Adams County. Of the 175 acres comprising the farm, 123 acres contained mature trees. Some logging had been done on the property in the past. Shortly after Ms. Sullivan's death, the Adams County National Bank, as executor of the will, engaged appraisers to inspect the property and give an opinion as to value. The appraisers have since agreed that they were not qualified to value timber and did not take timber values into consideration in their appraisals. Eventually the real estate was sold for $290,000. On December 6, 1995, the beneficiaries of the estate of Elizabeth Sullivan filed objections to the First and Final Account and requested that the Orphans' Court surcharge the bank because the bank failed to sell the real estate at its full fair market value. Eventually an auditor was named and, in March of 1997, Edward E. Guido, Esquire (now Cumberland County judge) issued findings of fact and conclusions of law. Therein, the auditor held that the sale of real estate at $290,000 was reasonable. However, the auditor held that the bank should have sold NO. 104 ORPHANS' 1993 the uncut timber on the Sullivan tract which would have realized a $205,200 profit for the estate. Thus, the auditor concluded that the bank should be surcharged a total of $205,200 plus costs and interest. The bank filed exceptions to the auditor's report. On or about September 4, 1997, the Honorable Harold E. Sheely, president judge of Cumberland County, specially presiding in the Adams County Orphans' Court, issued an opinion and final decree confirming the auditor's report. The bank. then appealed to the Superior Court. That court affirmed the judgment of the court below by adopting its opinion in its entirety. The bank then sought allocatur to the Supreme Court which was denied by order entered March 23, 1999. Pursuant to the auditor's report, the beneficiaries have filed a bill of costs. These include witness fees, stenographer fees and miscellaneous expenses. The bank has agreed to pay these costs and therefore there is no longer any issue to be resolved by the court in connection with them. In addition to the costs which the bank has agreed to pay, the objectants seek counsel fees. We are satisfied that the auditor did not award attomeys' fees to the beneficiaries as part of his conclusions and recommendations. He recommended that the executor "be directed to pay the appropriate costs of the beneficiaries for the prosecution of their objections." He then went on to direct that the executor pay its own "legal fees, costs and expenses." Clearly, the auditor differentiated between costs and legal fees. We do not, in any event, know of authority for the award of legal fees simply because the objectant was successful in the Orphans' Court. Notwithstanding, the beneficiaries now argue that they are entitled to attorneys' fees pursuant to the provisions of the Judicial Code making such attorneys' fees awardable where the NO. 104 ORPHANS' 1993 conduct of a party has been shown to be arbitrary, vexatious or ia bad faith. The Judicial Code provides, in pertinent part' Section 2503. Right of participants to receive counsel fees. The following participants shall be entitled to a reasonable counsel fee as part of the taXable costs of the matter; (7) any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. (9) any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. We are entirely satisfied that neither of the foregoing provisions justifies the award of counsel fees in this case. It is true that a "trial court may, upon motion, require a party to pay another participant's counsel fees if the party's conduct in commencing the action was arbitrary, vexatious or in bad faith." Dooley v. Rubin, 422 Pa. Super. 57, 618 A.2d 1014, 1018 (1993). However, the intent of the rule permitting the recovery of counsel fees is not to punish all of those who initiate actions which ultimately fail, as such a course of action would have a chilling effect on the right to raise a claim. Rather, the aim of the role is to sanction those who knowingly raise, in bad faith, frivolous claims which have no reasonable possibility of success, for the purpose of harassing, obstructing or delaying the opposing party. NO. 104 ORPHANS' 1993 Id.__:. (citations omitted). These principles apply equally to parties defending actions, as well as instituting them. See Norris v. Commonwealth, 159 Pa. Cmmwl. th. 23,634 A.2d 673 (1993) (holding that "or otherwise" in the phrase "the conduct of another patty in commencing the matter or otherwise was arbitrary, vexatious or in bad faith" refers to misconduct in raising of defenses). A mere showing that a party was unsuccessful in either the prosecution or defense of a case is not sufficient to sustain a finding of vexatious, arbitrary or bad faith conduct. In the matter sub judice the bank contested the decision of the auditor on the grounds that several of his legal conclusions were based on law which was far from settled in Pennsylvania. Our review of the record indicates that very real questions were posed by the bank. We cannot say that the bank acted in bad faith when it argued that uncut timber was not a separate part of the estate. Judge Sheely, in his opinion in this matter, indicates that as to that issue he conducted "extensive research." While he could find no case that supported the bank's proposition, there was no case found, directly on point, against it. The bank also argued that it had no duty to hold an estate open so that uncut timber could be harvested. Moreover, the bank argued that the separate harvesting and sale of timber was not required of them in the will and that the will's directive to promptly sell the real estate militated against such an interpretation. We are satisfied that the issues raised by the Adams County National Bank were legitimate. In addition, we find no evidence that the executor was dilatory in its defense or NO. 104 ORPHANS' 1993 otherwise engaged in conduct which was obdurate or vexatious. Very real issues were raised in 1 this case and the litigation was pursued in a professional manner. ORDER AND NOW, this ! 3 day of January, 2000, the petition of the residual beneficiaries under the Last Will and Testament of Elizabeth M. Sullivan, deceased, for an award of counsel fees as part of their bill of costs in this case is DENIED. B Y THE COURT, K ss, J. Henry Heiser, III, Esquire For the Objectants Jan G. Sulcove, Esquire For Wilson College David R. Breschi, Esquire For Adams County Bank :rim ~ We do not mean to suggest by this statement that any of the attorneys in this matter have accused another of being unprofessional. Our point is that the beneficiaries are mistaken when they contend that the bank's defense of this case was unreasonable.